Ezell v. Dodson

• Decision Date: 13 November 1883
• Docket Number: Case No. 1519.
• Parties: L. S. EZELL v. B. H. DODSON.
• Court: Texas Supreme Court

60 Tex. 331

L. S. EZELL

v.B. H. DODSON.

Case No. 1519.

Supreme Court of Texas.

Nov. 13, 1883.

APPEAL from Hopkins. Tried below before the Hon. Green J. Clark.

R. H. Capers, for appellant.

Hunter, Putnam & Crawford, for appellee.

WILLIE, CHIEF JUSTICE.

This suit was brought by the appellant, a married woman, to recover damages for an assault and battery alleged to have been committed upon her by the appellee. Her husband was not a party plaintiff to the action, and as an excuse for not joining him in the suit she alleged that her husband and herself were living separate and apart from each other, in different counties of this state, and that he refused to join her in the prosecution of the suit. She therefore asked the court to be allowed to prosecute the suit alone and in her own name.

Among other pleadings filed by the defendant were two special exceptions, setting up, first, that the suit could not be maintained by plaintiff, but by her husband alone; second, that the suit was for community property, and that J. J. Ezell, the plaintiff's husband, was not joined in the suit. These exceptions were sustained by the court, and the plaintiff declining to amend the cause was dismissed. The plaintiff has brought the case to this court by appeal.

The question for our decision is: Can a married woman living separate from her husband sue, without joining him as a co-plaintiff, to recover damages for an assault and battery committed upon her during coverture, her husband refusing to join in the suit?

The right to sue for damages for a tort is a chose in action, and property within the legal sense of that term. 2 Bishop on Married Women, § 271; C., B. & Q. R. R. Co. v. Dunn, 52 Ill., 260.

Whilst at common law all choses in action, accruing to the wife during coverture by contract, belonged to the husband, such as she derived by reason of a tort remained her individual property. As under that system the husband was compelled to join the wife with himself in all suits to recover her separate estate, he made her plaintiff in an action for damages for a post-nuptial tort, whereas, in a suit to recover upon a note or bond acquired by her during marriage, he sued alone, as it was his own property. Many of the American states have made all property acquired by the wife during coverture in any manner whatever her separate estate. Hence in those states, upon the above principle, she is held a necessary party to a suit upon a chose in action acquired by a tort to her person or property; and when under the laws and decisions of such states she is allowed to maintain alone an action to recover her separate estate, she can sue for damages in tort without joining her husband. See C., B. & Q. R. R. Co. v. Dunn, supra;Berger v. Jacobs, 21 Mich., 215.

Our statute prescribes who shall be parties plaintiff in suits to recover the separate property of the wife; and if the right to sue for injuries to the wife, caused by an assault and battery committed upon her person, was by our law her separate estate, as at common law, the proper parties plaintiff would, under the statute, be the husband and wife jointly, or if he refused to join, the wife could sue alone.

But of the property which a wife may acquire during marriage, none becomes her separate estate except such as is derived by gift, devise or descent; all acquired in any other manner is community property.

Of course such property as is derived by reason of a personal trespass committed upon her falls under neither of these heads of gift, devise or descent, and necessarily forms part of the acquits and gains of the marital partnership. Our statute does not expressly give to the wife the right to sue alone for the community estate in any case whatever, but decisions of this court heretofore made have allowed her in certain exceptional cases to exercise that privilege, or...