In re Nickerson

• Decision Date: 19 January 1886
• Docket Number: Case No. 2081.
• Citation: 65 Tex. 281
• Parties: ABRAM NICKERSON AND JAMES V. MATSON, JR., v. AMANDA NICKERSON.
• Court: Texas Supreme Court

65 Tex. 281

ABRAM NICKERSON AND JAMES V. MATSON, JR.,

v.AMANDA NICKERSON.

Case No. 2081.

Supreme Court of Texas.

Jan. 19, 1886.

ERROR from Washington. Tried below before the Hon. J. B. McFarland.

This suit was brought by Amanda Nickerson, October 10, 1883, against Abram Nickerson and James V. Matson, Jr., for false imprisonment, laying her damages at $10,000. The plaintiff alleged, in her petition, that she and the defendant Abram Nickerson were, at the time, husband and wife, but had not been living together for several years, charging the fault of their separation to the husband. Plaintiff further alleged, that the defendants, desiring and conspiring together to get posession of her two sons, aged, respectively, nine and twelve years, whose services were of great value to her in supporting herself and family, for that purpose procured the issuance of a warrant or capias, about October 7, 1883, for the arrest of herself and her said children; and that she was, by virtue of said warrant, arrested and imprisoned twenty-four hours. She charged that the warrant was issued illegally and without authority or jurisdiction. By an amendment filed September 9, 1884, the plaintiff alleged that at the institution of the suit she was, and still is, in destitute circumstances, and that, on September 8, 1884, she was, by the decree of that court, divorced from her husband Abram Nickerson.

The defendant Matson demurred to plaintiff's petition, by both general and special demurrer. The court overruled the demurrer, and Matson answered, denying that he had anything to do with having plaintiff arrested, etc. The defendant Nickerson filed no answer.

On September 11, 1884, the case was tried by a jury and resulted in a judgment for the plaintiff, for the sum of $200; from this judgment defendants prosecute this writ of error.

Garrett, Searcy & Bryan, for plaintiffs in error, that the wife cannot sue her husband for damages for a tort committed by him upon her during coverture, cited: Abbott v. Abbott, 67 Me. 304; Longendyke v. Longendyke, 44 Barb. 366; 1 Wait's Acts and Def. 342; Cooley on Torts, 227; Am. Law Rev., vol. 18, No. 6, p. 1043.

That damages recovered for a tort committed upon the wife during coverture, is community property, and that the court erred in permitting Mrs. Nickerson to maintain this suit without joining her husband as co-plaintiff, they cited: R. S., art. 2852; R. S., art. 1204; Ezell v. Dodson, 60 Tex. 331;Southworth v. Packard, 7 Mass. 95; Bullard v. Russell, 33 Me. 196; Shaddock v. Clifton, 22 Wis. 114.

Sayles & Bassett, for defendant in error, that the wife, when abandoned by her husband and in destitute circumstances, has power to manage and control the community property, and, if necessary, to enforce her rights by suit, cited: Kelley v. Whitmore, 41 Tex. 647, 648;Ezell v. Dodson, 60 Tex. 331;Blanchet v. Dugat, 5 Tex. 507;Wright v. Hays, 10 Tex. 130;Cheek v. Bellows, 17 Tex. 613;Fullerton v. Doyle, 18 Tex. 4;Walker v. Stringfellow, 30 Tex. 570;Forbes v. Moore, 32 Tex. 195;Jacobs v. Cunningham, 32 Tex. 774;McAfee v. Robertson, 41 Tex. 358;Ann Berta Lodge v. Leverton, 42 Tex. 18;Zimplemann v. Robb, 53 Tex. 274.

That the husband, having been a party to the wrong, was properly made a defendant to the suit, they cited: O'Brien v. Hilburn, 9 Tex. 297;Hartley v. Frosh, 6 Tex. 208;McKay v. Treadwell, 8 Tex. 176;Kelley v. Whitmore, 41 Tex. 647.

STAYTON, ASSOCIATE JUSTICE

It is unnecessary to inquire whether had the husband of Mrs. Nickerson not been a party to the wrongs, of which she complains, the pleadings which preceded the trial amendment set up such facts as would ordinarily entitle a married woman to maintain an action without being joined by her husband, for the trial amendment, which was filed within one year after the injury was inflicted, alleged that she had been divorced from her husband.

The injury of which she complains, was inflicted upon her by her husband and his co-defendant, during coverture.

The husband could not have maintained an action against his co-defendant for a tort upon his wife, in the perpetration of which they were joint tort-feasors; for, out of his own wrong, no action could could accrue to him.

The tort inflicted upon the wife by the husband and another, gave no right of action to the wife against the husband, Cooley on Torts, 223, 227; Peters v. Peters, 42 Iowa, 182; Longendyke v. Longendyke, 44 Barb. 366.

For such injuries, in so far as the husband was concerned, no compensation could be given to the wife, through a civil action.

If the tort constituted a violation of the criminal law the husband was amenable thereto, and the wrong to the public might, through it, be punished.

Whatever cause of action the wife had, accrued when the acts of which she complains were committed; and the fact of divorce subsequently granted, can not make that a cause of action which was not so at the time the facts transpired, Phillips v. Barnett, 1, 2 Bishop on Div., 438; Abbott v. Abbott, 67 Me. 304.

As to Abram Nickerson, this action cannot be sustained, and the judgment, as to him, must be reversed and the cause dismissed.

It is urged that this action cannot be maintained against the defendant Matson. This proposition is based on two other propositions:

1. That an action of this kind cannot be prosecuted by the wife alone, but only when joined by her husband.

This would be true where the unity of husband and wife is, as it is strictly held to be, at common law, so long as the marriage relation existed, but even under that system, after discoverture by death or divorce, a wife may prosecute, alone, an action for tort on her person; and, like other choses in action not reduced to possession during the coverture, the sum recovered would be her separate estate.

“The wife has capacity to be a recipient of wrong, as well as of property, the same as though she were sole. If she is slandered, or an assault and battery is committed on her, or any trespass or other actionable wrong, she may, on becoming discovert, sue the wrongdoer the same as though she had been sole when she received the injury; though, if the suit is brought in the life-time of the husband, he must be made a party plaintiff with her, in consequence of the general rule of law which places the wife under the protection of the husband.” 1 Bishop's Law of Married Women, 705.

“There are circumstances in which, by the rules of the common law, the separation of the husband and wife confers on her the right to sue and be sued, and otherwise to act as a feme sole. If, therefore, a separation of this sort has taken place, it is plain, in legal reason, that the wife may recover in an action for a tort, suing alone, both those damages which could be recovered in the name of the husband and wife, and in the sole name of the husband, were they living together. A fortiori, if, before action brought, the husband dies or a divorce intervenes, the woman can recover the whole to her own use.” 2 Bishop's Law of Married Women, 276.

Such a cause of action as is asserted in this case, would not survive to a husband, on the death of a wife; but, as the injury was personal to the wife, she could prosecute a suit after discoverture by death or divorce, whether brought before or...