Dorsett v. Dorsett

• Decision Date: 19 April 1922
• Docket Number: 392.
• Parties: DORSETT v. DORSETT.
• Court: North Carolina Supreme Court

111 S.E. 541

183 N.C. 354

DORSETT v. DORSETT.

No. 392.

Supreme Court of North Carolina

April 19, 1922

Appeal from Superior Court, Guilford County; Webb, Judge.

Action by Cora L. Dorsett against F. A. Dorsett. From judgment sustaining a demurrer to the complaint and dismissing the action, plaintiff excepts and appeals. Affirmed.

This action was brought by the wife to recover of her husband the sum of $5,400 upon a quantum meruit for services rendered by her while they were living together as husband and wife. The complaint alleges:

(1) That the plaintiff and defendant intermarried July 21, 1917 in the county of Guilford.

(2) That at the time of their marriage the defendant was in the business, in Greensboro, of repairing bicycles, guns, keys locks, etc., and was doing business on Davie street in the city of Greensboro, in a house which he rented for that purpose.

(3) That in November, 1917, after the plaintiff was married, she went into the said place of business of the defendant, and besides her domestic duties which she carried on, she rendered service to her husband by waiting on his customers made keys, worked on bicycles, guns, and other instruments to be repaired, which were brought into the shop, and other kinds of this character of business; that she continued to work for defendant until about November 15, 1920.

(4) That under the laws of North Carolina she is advised that she is entitled to pay for her services rendered the defendant as aforesaid, which were worth the sum of $150 per month for the period of three years from November, 1917, to November 15, 1920, amounting to $5,400. Wherefore, the plaintiff demands of the defendant the sum of $5,400 and the costs of this action, to be taxed by the clerk.

The defendant demurred as follows: That it appears upon face of said complaint that said complaint does not state facts sufficient to constitute a cause of action, for that:

(1) It appears that at the time when plaintiff alleges she worked for defendant she and the defendant were married, that she was the wife of defendant, and that they were at that time living together as husband and wife.

(2) That the complaint shows upon its face that plaintiff's alleged cause of action is upon a quantum meruit for alleged services to defendant, her husband, at a time when plaintiff and defendant were living together as husband and wife.

The court sustained the demurrer, and dismissed the action. The only exception is to the judgment assigned.

John A. Barringer, of Greensboro, for appellant.

King, Sapp & King, of Greensboro, for appellee.

CLARK C.J.

This action is based on C. S. § 2513, which is as follows:

"The earnings of a married woman by virtue of any contract for her personal service, and any damage for personal injuries, or other torts sustained by her, can be recovered by her suing alone, and such earnings or recovery shall be her sole and separate property as fully as if she had remained unmarried."

This statute was recently construed in Kirkpatrick v. Crutchfield, 178 N.C. 353, 100 S.E. 607, in which we said:

"It was felt to be unjust and illogical that the husband should recover for labor which the wife had performed outside the household duties, and under a contract which she had a legal right to make 'as if single,' and that when the wife had borne the physical and mental suffering of the amputation of her foot, and a broken arm and other injuries, compensation should go to her and not to her husband, who had suffered nothing. The discharge of household duties, unending and tiresome and without limitation of hours, the rearing of children, the loving companionship and attentions of a wife are full compensation for her right to support by her husband."

That case upheld the right of the wife to maintain an action "by virtue of any contract for personal services and any damages for personal injuries" against a third party. The right of the wife to recover her separate earnings, suing alone, was also sustained by Adams, J., Croom v. Lumber Co., 182 N.C. 219, 108 S.E. 735.

In Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206, the court held that the wife "might maintain an action against her husband for an assault or other personal injury, and in such case recover punitive as well as compensatory damages," saying:

"Whether a man has laid open his wife's head with a bludgeon, put out her eye, broken her arm, or poisoned her body, he is no longer exempt from liability to her on the ground that he vowed at the altar to 'love, cherish, and protect' her. Civilization and justice have progressed thus far with us, and never again will 'the sun go back ten degrees on the dial of Ahaz.' Isaiah, 38:8." 180 N.C. 524, 105 S.E. 210.

Crowell v. Crowell was reaffirmed on rehearing, Stacy, J., 181 N.C. 66, 106 S.E. 149.

This case presents an entirely new feature. It is not the case of recovery of compensation on a contract against a third party, nor for personal injury against her husband, as well as others, but whether she can recover against her husband as upon contract for services rendered without any agreement for compensation.

It may be essential justice in many cases that, where a wife has rendered services outside the discharge of her household duties, she should receive compensation, and she certainly can do so where there is such agreement with her husband, but in this case there is no such agreement, expressed or implied or even alleged. An implied agreement for compensation always depends upon the surroundings and the conditions attendant upon the rendition of the services.

In Prince v. McRae, 84 N.C. 675, the court said:

"Whether the plaintiff's services shall be deemed a gratuity or constitute a claim for

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