Heyman v. Heyman

• Decision Date: 03 April 1917
• Docket Number: 8306.
• Citation: 92 S.E. 25,19 Ga.App. 634
• Parties: HEYMAN v. HEYMAN.
• Court: Georgia Court of Appeals

92 S.E. 25

19 Ga.App. 634

HEYMAN v. HEYMAN.

No. 8306.

Court of Appeals of Georgia, First Division

April 3, 1917

Syllabus by the Court.

Under the statute law of Georgia a wife cannot recover of a husband, with whom she is living in lawful wedlock, for a tort resulting from his negligent operation of an automobile in which they were riding at the time of the injury.

The court erred in overruling the general demurrer to the plaintiff's petition.

Additional Syllabus by Editorial Staff.

At common law the husband and wife are one person in law, and the wife's legal existence is suspended during the marriage and consolidated into that of the husband.

At common law the husband is bound to provide his wife with necessaries, and, if she contracts debts for them, is obliged to pay them.

At common law, if the wife is indebted before marriage, the husband is bound afterwards to pay the debt, for he has adopted her and her circumstances together.

At common law the wife, if injured in her personal property, can bring no action for redress without her husband's concurrence, and in his name as well as her own.

At common law a wife cannot be sued without making her husband a party defendant.

The common-law rule as to the rights and liabilities of husband and wife is in force in Georgia, except where changed by the statute law.

Statutes in derogation of common law must be strictly construed.

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Suit by Flora Heyman against Jules Heyman. Judgment for plaintiff on overruling demurrer to petition, and defendant brings error. Reversed.

Wm. H Fleming, of Augusta, for plaintiff in error.

C Henry & R. S. Cohen, of Augusta, for defendant in error.

LUKE J.

A wife filed suit against her husband, with whom she was living in lawful wedlock, to recover damages alleged to have been sustained by her by reason of the negligence of the husband in driving his automobile while she was an occupant of the car with him. The defendant demurred on the ground that a husband is not liable in law for a negligent tort to his wife. The court overruled the demurrer, and the defendant excepts.

1. At common law, by marriage the husband and wife are one person in law; the legal existence of the wife is suspended during the marriage and consolidated into that of the husband. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquires by the marriage. The husband is bound by law to provide his wife with necessaries, and, if she contracts debts for them, he is obliged to pay them. If the wife is indebted before marriage, the husband is bound afterwards to pay the debt, for he has adopted her and her circumstances together. If the wife be injured in her person or property, she can bring no action for redress without her husband's concurrence, and in his name as well as her own. Neither can she be sued without making her husband a defendant. 1 Bl. Com. 355. Keeping in mind that the common-law rule is of force in Georgia, except where changed or varied by the statute law, and that statutes in derogation of common law must be construed strictly, what statute of this state can be so construed as to authorize the courts to say it is the letter, spirit, and intention of the lawmaking power to change the common-law rule so that a husband may be liable to the wife for a tort committed by his negligence?

The Married Woman's Act of 1866, as embodied in Civil Code 1910,§ 2993, provides that:

"All the property of the wife at the time of her marriage, whether real, personal, or choses in action, shall be and remain the separate property of the wife; and all property given to, inherited, or acquired by the wife during coverture shall vest in and belong to the wife, and shall not be liable for the payment of any debt, default, or contract of the husband."

The wife may recover for a tort, as provided in Civil Code 1910, § 2994:

"If a tort be committed upon the person or reputation of the wife, the husband or wife may recover therefor; if the wife is living separate from the husband, she may sue for such torts, and also torts to her children, and recover the same to her use. She may enforce contracts made in reference to her own acquisitions."

In construing sections 2993 and 2994, supra, the courts have held that the wife may recover, while living with the husband, for physical injuries received by her. City of Atlanta v. Dorsey, 73 Ga. 479; Mayor & Council of Athens v. Smith, 111 Ga. 870, 36 S.E. 955. While the wife may recover for physical injuries, she cannot ordinarily recover for the loss of earning capacity, the exception being where the husband has expressly or impliedly consented for the wife to have her own earnings, or where the wife is living separate from her husband. Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga.App. 372, 71 S.E. 691; Georgia R. & B. Co. v. Tice, 124 Ga. 459, 52 S.E. 916, 4 Ann.Cas. 200. Civil Code 1910, § 3652, declares:

"For every violation of a contract express or implied, and for every injury done by another to person or property, the law gives a right to recover, and a remedy to enforce it. Such a right is a chose in action, and such a remedy is an action or suit at law."

While a married woman living with her husband, since the enactment of the statutes hereinbefore quoted, may, in many instances, sue and be sued, neither the Supreme Court nor the Court of Appeals of Georgia has held that a wife, while she is living in lawful wedlock with her husband, may recover from her husband for an injury received by her resulting from his negligence.

The plaintiff contends that a proper construction of sections 2993, 2994, and 3652, supra, would permit the wife to recover for the negligent tort of the husband to her. In some of the states the courts have, upon statutes more or less similar to our statutes, held that the wife can recover against her husband for a negligent tort. By common law the husband might restrain the wife of her liberty and might chastise her. The Supreme Court of Connecticut, in Mathewson v. Mathewson, 79 Conn. 23, 63 A. 285, 5 L.R.A. (N. S.) 611, 6 Ann.Cas. 1027, said:

"The law which attached such subjection to the legal status of a married woman has been abolished, but not by direct legislation; it has disappeared under the continuous pressure of judicial interpretation or indirect legislation."

In Brown v. Brown, 88 Conn. 43, 89 A. 890, 52 L.R.A. (N. S.) 185, Ann.Cas. 1915D, 70, Mr. Justice Thayer, for the court, after quoting from Mathewson v. Mathewson, supra, said:

"It is now as unlawful for him to beat or falsely imprison his wife as for another to do so, and he is amenable to the criminal law for such an offense. If another, prior to the recent statutes, committed these offenses against her, he was liable in an action for the injuries inflicted upon her by such torts, but the action had to be brought in the name of her husband and herself jointly, the real purpose of the action being to reduce the chose into the possession of the husband. The wife was joined because, if her husband should die pending the suit, the damages would survive to her."

The justice continuing said:

"In the Mathewson Case we held that a wife's right to contract with the husband, and to

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