Fitzgerald v. Quann

• Citation: 17 N.E. 354,109 N.Y. 441
• Parties: FITZGERALD v. QUANN.
• Decision Date: 05 June 1888
• Court: New York Court of Appeals

109 N.Y. 441

17 N.E. 354

FITZGERALD

v.QUANN.¹

Court of Appeals of New York.

June 5, 1888.

Appeal from general term, supreme court, Fifth department.

Action by Ann Fitzgerald against Charles Q. Quann and Mary L. Quann, his wife, for slander. The special term dismissed the complaint as to the husband, which order was, on an appeal to the general term, reversed; and defendant Quann appealed to this court.

DANFORTH and FINCH, JJ., dissenting.

James Wood, for appellant.

Treadwell Cleveland, for appellee.

PECKHAM, J.

The very satisfactory opinion delivered by the learned justice at the general term, when this case was before that court, renders it unnecessary to enter upon any general discussion of the question in this court. The counsel for the defendant, in his argument before us, conceded the rule to be well established, and almost universally acted on, that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires. However much modern judges might sometimes be inclined to doubt the beneficial results to be derived from an always strict adherence to the rule, grounded upon some possible doubts of the high order of excellence, in all cases, of the common law, or of its being without exception the perfection of human reasoning in any other than a very narrow, technical, and one-sided way, yet the rule itself is too securely and firmly established and grounded in our jurisprudence to be altered other than by legislative interference. This court acted upon such rule in the late case of Bertles v. Nunan, 92 N. Y. 152; and, because there was no statute which plainly altered it, the common law was held, in that case, to remain the law in this state in regard to the conveyance of real estate to a husband and wife jointly, and that upon the death of either the survivor took the whole estate.

It is claimed, however, that there is an express enactment abrogating the common law in regard to the liability of a husband for the torts of his wife, and that such enactment is to be found in chapter 172 of the Laws of 1862, entitled ‘An act to amend the act entitled ‘An act concerning the rights and liabilities of husband and wife,’ passed March 20, 1860.' The court is referred to section 7 of the act, which reads: ‘A married woman may be sued in any of the courts in this state; and, whenever a judgment shall be recovered against a married woman, the same may be enforced by execution against her sole and separate estate, in the same manner as if she were sole.’ This section, clearly, does not reach any such result. It evidently contemplates the existence of causes where it would be proper to sue a married woman alone; for the provision making her sole and separate estate liable on execution upon a judgment recovered against her would lead one to that inference. But the section does not assume to state what those causes are. This done in the third section of the same act, which amends the seventh section of the act of 1860; and in this amended section it is stated that ‘a married woman may, while married, sue and be sued in all matters having relation to her sole and separate property, or which may hereafter come to her by descent, devise, bequest, purchase, or the gift or grant of any person, in the same manner as if she were sole; and any married woman may bring and maintain an action in her own name for damages against any person or body corporate for any injury to her person or character, the same as if she were sole,’ etc. In the subsequent section of the act of 1862 (section 5) it is provided that, in an action brought or defended by any married woman in her name, her husband shall not, neither shall his property, be liable for the costs thereof, or the recovery therein. It is thus seen that, in a statute which legislates upon the subject of the rights and liabilities of husband and wife, a portion of one section treats of the rights of the wife as to suing and being sued ‘in the same manner as if she were sole,’ and the cases are stated in...