Henneger v. Lomas

• Decision Date: 11 June 1896
• Docket Number: 17,612
• Parties: Henneger v. Lomas
• Court: Indiana Supreme Court

44 N.E. 462

145 Ind. 287

Henneger v. Lomas

No. 17,612

Supreme Court of Indiana

June 11, 1896

From the Allen Superior Court.

Reversed.

S. M Hench, for appellant.

Randall & Doughman, for appellee.

OPINION

Monks C. J.

Appellant brought this action against appellee to recover damages for her own seduction, under the provisions of section 263, R. S. 1881 (section 264, R. S. 1894). Appellee's separate demurrer to each paragraph of the amended complaint for want of facts was sustained. Appellant refused to plead further, and judgment was rendered against her. This action of the court is assigned as error.

It is urged by appellee that the specifications in the assignment of errors are not directed to the ruling on each paragraph, but to the complaint as an entirety. While the specifications in the assignment are not as certain as they could have been made, yet we think they call in question the ruling of the court upon each paragraph of the complaint.

The question presented by the demurrer to the first and second paragraphs of the complaint, is whether a woman under the age of twenty-one years, who has been seduced, and marries her seducer, and afterwards procures a divorce, has, after said divorce is granted, a cause of action against him for damages for said seduction under the provisions of section 263 (264), supra.

Section 263 (264), supra, provides that: "Any unmarried female may prosecute, as plaintiff, an action for her own seduction, and may recover therin such damages as may be assessed in her favor."

It was held by this court, in Dowling v. Crapo, 65 Ind. 209, that an action for the seduction of an unmarried female was not barred by her subsequent marriage to a person other than her seducer. That the term "unmarried," used in the statute, relates to the time of the seduction, and not to the time of the commencement or trial of the action.

At common law a valid marriage made the husband and wife one person in law. The legal existence of the woman was suspended or merged in that of the husband. 1 Blackstone Comm. 442, 443; Coke Litt. 112 b.; 2 Kent Comm., p. 129; Schouler Husband and Wife, section 6.

The husband, by virtue of the marriage, was entitled to all the personal property and choses in action of his wife, which, when reduced to possession, becomes his absolute property, and was also entitled to the exclusive possession, use, and control of her real estate during their joint lives. The marriage extinguished all debts and causes of action for ante-nuptial wrongs between the parties. Long v. Kinney, 49 Ind. 235; Flenner v. Flenner, 29 Ind. 564; Burleigh v. Coffin, 22 N.H. 118, 53 Am. Dec. 236; 9 Am. and Eng. Ency. of Law, 795 and note 5.

They could not sue one another, nor did any cause of action arise in favor of either by reason of any injury to the person or character committed by the other.

Kujek v. Goldman, 9 Misc. 34, 29 N.Y.S. 294; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Note to Commonwealth v. Barry, 2 Green Crim. Law Rep. 285; State v. Oliver, 70 N.C. 60; Peters v. Peters, 42 Iowa 182; Libby v. Berry, 74 Me. 286; Dicey Parties, star. p. 173.

The husband was liable for his wife's ante-nuptial torts and contracts, and also for her torts committed during coverture, including those committed out of his presence and without his directions. Ferguson v. Collins, 8 Ark. 241; Brown v. Kemper, 27 Md. 666; Hubbell v. Fogartie, 3 Rich. 413; Allen v. McCullough, 2 Heisk (Tenn.), 174; Heard v. Stamford, 3 P. Wms. 409; Hawk v. Harman, 5 Binn. 43; Bell v. Bennett, 21 Ind. 427, 83 Am. Dec. 366; Baker v. Young, 44 Ill. 42; 9 Am. and Eng. Ency. of Law, 823-825; Dicey Parties, C 30 rule 107, p. 477.

For choses in action accruing to the wife during coverture, the husband could sue alone, but for her ante-nuptial choses he was required to join his wife as a co-plaintiff in the suit. Tucker v. Gordon, 5 N.H. 564; Boozer v. Addison, 2 Rich. Eq. 273, 46 Am. Dec. 43 and note 47-51; Thompson v. Ellsworth, 1 Barb. Ch. 624; Rumsey v. George, 1 Maul. and Sel. 176. Checchi v. Powell, 6 Barn. and C. 253; Milner v. Milnes, 3 T. R. 627.

For injuries to the person or character of the wife, whether committed before or after the marriage, she could bring no action for redress without her husband's concurrence. Such action could only be brought in the name of both for her injuries, and the damages recovered were the property of the husband, and not of the wife. Throgmorton v. Davis, 3 Blackf. 383; Long v. Morrison, 14 Ind. 595, 77 Am. Dec. 72 and note; Rogers v. Smith, 17 Ind. 323, 79 Am. Dec. 483 and note 484, 485; Barnett v. Leonard, 66 Ind. 422; Thomas v. Winchester, 6 N.Y. 397, 57 Am. Dec. 455; Smalley v. Anderson, 2 T. B. Monroe (Ky.) 56, 15 Am. Dec. 121; Ballard et al. v. Russell, 33 Me. 196, 54 Am. Dec. 620; Shaddock v. Clifton, 22 Wis. 114, 94 Am. Dec. 588, and note 591-594; Gibson v. Gibson, 43 Wis. 23, 28 Am. Rep. 527; Kaime v. Trustees, 49 Wis. 371, 5 N.W. 838; Reeder v. Purdy, 41 Ill. 279; Anderson v. Anderson, 74 Ky. 327, 11 Bush 327; Dicey Parties, C. 16 rule 67, p. 297; Southworth v. Packard, 7 Mass. 95.

Any settlement made or discharge given by the husband in such case bound the wife. Southworth v. Packard, supra; Beach v. Beach, 2 Hill 260, 38 Am. Dec. 584; Ballard v. Russell, supra; Shaddock v. Clifton, supra.

For the loss of the service and society of his wife, caused by such injuries, the right of action was in the husband alone, and the action to recover therefor could only be brought in his name. Long v. Morrison, supra; Brockbank v. Whitehaven, 7 Hurl. & Nor. 834; Rogers v. Smith, supra; Pollard v. Railroad Company, 101 U.S. 223, 25 L.Ed. 840, and note. Shaddock v. Clifton, 94 Am. Dec. on p. 591.

For the reason that the marriage extinguished antenuptial rights of action for tort or upon contract between husband and wife, the wife could not, after divorce from her husband or his death, maintain an action against him or his estate for any injury to her person or character, committed by him before their marriage or during coverture. Peters v. Peters, supra; Abbott v. Abbott, supra; Libbey v. Berry, supra; Main v. Main, 46 Ill.App. 106; 9 Am. and Eng. Ency. of Law, 795, and notes 9, 10; Schouler Husband and wife, section 81.

These rules of the common law are founded upon the principle that the husband and wife are one in law, and not upon the theory that the wife is under legal disability. Barnett v. Harshbarger, Admr., 105 Ind. 410, 5 N.E. 718; Phillips v. Barnett, 1 Q. B. Div. 436.

The rules of the common law have been greatly relaxed in this State by legislative enactment.

It is provided by section 5116, R. S. 1881 (section 6961, R. S. 1894), enacted in 1852, that: "No lands of any married woman shall be liable for the debts of her husband; but such lands, and the profits therefrom, shall be her separate property, as fully as if she were unmarried: Provided, That such wife shall have no power to incumber or convey such lands, except by deed in which her husband shall join."

Section 2488, R. S. 1881, enacted in 1853, provides that "The personal property of the wife held by her at the time of her marriage, or acquired, during coverture, by descent, devise, or gift, shall remain her own property to the same extent and under the same rules as her real estate so remains; and on the death of the husband before the wife, such personal property shall go to the wife; and on the death of the wife before the husband, shall be distributed in the same manner as her real estate descends, and is apportioned under the same circumstances." This section was amended in 1891, section 2649, R. S. 1894, but the provision concerning personal property owned by the wife at the time of her marriage remains unchanged.

Section 254, R. S. 1881 (section 255, Burns' R. S. 1894), provides that "A married woman may sue alone.

"First. When the action concerns her separate property.

"Second. When the action is between herself and her husband; but in no case shall she be required to sue or defend by guardian or next friend, except she be under the age of twenty-one years."

Under this section, it is clear a married woman may, as sole plaintiff, sue her husband, or any other person, concerning her separate property. Adams v. Sater, 19 Ind. 418; Gee v. Lewis, 20 Ind. 149; Mills v. Winter, 94 Ind. 329.

The effect of section 254 (255), supra, was to leave the common law rule in force, except as to the cases mentioned in said section, in which the wife was authorized to sue alone. Hamm v. Romine, 98 Ind. 77, 80.

This court has held that said section 254 (255) did not change the common law rule, that in all actions to recover injuries to the person or character of a married woman, the husband and wife must join as plaintiff. Barnett v. Leonard, supra; Rodgers v. Smith, supra; Long v. Morrison, supra.

Section 5131, R. S. 1881 (section 6976, R. S. 1894), which was first enacted in 1879, provides that "A married woman may bring and maintain an action in her own name against any person or body corporate for damages for any injury to her person or character, the same as if she were sole; and the money recovered shall be her separate property, and her husband, in such case, shall not be liable for costs."

While the statutes in this State have removed the disabilities of married women until ability is now the rule, and disability the exception, yet all her disabilities have not been removed. Barnett v. Harshbarger, supra; Rosa v. Prather, 103 Ind. 191, 2 N.E. 575.

As we have shown, the common law rule that marriage extinguished all rights of action in favor of the wife against the husband for ante-nuptial injuries by the husband to her person or character, was founded upon the principle of...