Johnson v. Johnson

Decision Date20 December 1917
Docket Number8 Div. 37
Citation77 So. 335,201 Ala. 41
PartiesJOHNSON v. JOHNSON.
CourtAlabama Supreme Court

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by Ida Johnson against J.K. Johnson for damages for assault and battery. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Somerville Gardner, and Thomas, JJ., dissenting.

The third assignment of error is as follows: The circuit court erred, to the injury of the appellant, in overruling defendant's objection to the court's permitting the witness to write on a piece of paper the words, "damn bitch, damn yellow bitch," and permitting these words when written on the paper, to be read to the jury in the absence of the witness. Assignment 14: The court erred, to the injury of appellant, in refusing to permit defendant to show by plaintiff on cross-examination that in October before this difficulty she had gotten mad and had left home, and did not come back until after the automobile accident. 22. The court erred, to the injury of appellant, in excluding the statement of defendant (speaking of plaintiff) that she was crying. 23. In excluding statement of defendant (speaking of plaintiff) that she was not hysterical--it was just meanness. 24. In refusing to allow defendant to show that plaintiff had assaulted him on a previous occasion with a broom. 27. In refusing to allow appellant to prove by the witness that he had purchased meal of the witness to be delivered to his house, and that he delivered the meal, and plaintiff was the only one there, and that she declared she would not cook it that he need not bring it, that she was not going to cook it. 25. The court erred in refusing to allow defendant to show that plaintiff's disposition was that of a fussy quarrelsome, and contentious Person. 26. same as to another witness. 28. in refusing to allow defendant to show by a witness that he knew plaintiff's temper and disposition, and that it was quarrelsome and fussy. Charge 3 refused to defendant is as follows: "The court charges the jury that if the parties are husband and wife, you may look to this in connection with all the other evidence, and if you find that the conduct and demeanor of plaintiff toward defendant was such as to irritate, annoy, and provoke defendant into hasty or unthoughted act towards plaintiff, you may consider such condition and conduct in mitigation of such acts on his part, though you should not find him blameless." Assignment 13: The court erred in refusing to allow defendant to ask plaintiff on cross-examination this question: "Your feelings towards your husband at that time were such that you would not notify him that you had been in an accident?" 15. In refusing to permit defendant to ask plaintiff on cross-examination this question with reference to her interview with Dr. Morton: "He told you that you and Dr. Johnson had been quarreling so much that he would not give you a warrant." 16. Question to plaintiff on cross-examination: "Didn't Dr. Morton tell you that your relations with Dr. Johnson were such, and that you had been talking in such a way, he could not give you a warrant?" 17. Question to plaintiff on cross-examination, speaking of Dr. Morton: "He did not give you a warrant, did he?" 18. Just after plaintiff as a witness had testified, "I just asked him for protection," the court refused to permit defendant on cross-examination to ask her if Dr. Morton did not tell her that she did not need protection. Assignment of error 4: The court erred in permitting plaintiff as a witness to testify that Mrs. Polk assisted her up the steps and into the house. 5. Permitting plaintiff to testify that she was in Mrs. Polk's house an hour or so. 6. Permitting plaintiff to testify that she remained at Mrs. Snellgrove's until the middle of the afternoon. 7. Permitting plaintiff to testify as a witness that she was carried there not long before night and remained there. 8. Permitting witness to testify: "I do not know just exactly how long it was, but just as I would suffer. I do not know that it was applied every day, but was for a while." The following charges were refused to defendant: 4. The court charges the jury that defendant was under no duty to hold plaintiff to keep her from assaulting him. 7. Under the law defendant had the right to inquire of plaintiff about household articles, or their disposition, and such inquiry would not be provocation which would justify a wife in assaulting him. 9. Inquiry by the husband as to the management or government of the house, made of the wife, do not justify an assault by her upon him, nor would such inquiry put him at fault in provoking or bringing on the difficulty. 10. The use of words of remonstrance or rebuke or reproach by the husband to the wife do not constitute a fault on his part as a justification for an assault by her upon him, whether such remonstrance, rebuke, or reproach were well or ill founded. 11. Practically the same as 10.

A.E. Hawkins, of Albertville, and John A. Lusk & Son, of Guntersville, for appellant.

Street & Bradford, of Guntersville, for appellee.

SAYRE J.

This appeal raises the question whether, under our system of law, a wife may maintain an action to recover damages for an assault and battery committed upon her person by the husband.

It is conceded, of course, that at the common law no such action could be maintained. That law regarded the husband and wife, for judicial purposes, as but one person, and, we may add, the husband was that person. Hence the rule to which we have referred and one result that husband and wife could not contract with or sue each other. While much of that law has disappeared under the pressure of a public opinion steadily growing in enlightenment, it must still be conceded that it is not for the courts by sudden strokes of policy to make deep innovations upon the established law. We think, then, that the question now before us may be appropriately stated in the following form: Have our statutes on the subject of the rights of married women left unchanged the theory of legal identity, of old the foundation of the marital status, merely providing exceptions to the necessary consequences of that theory, or has that foundation been so substantially changed that, except as disabilities have been retained, each has against the other all the rights of persons not so related? Under our statutory system, our opinion is that the latter alternative may and should be adopted.

Section 4492 of the Code provides that "the wife has full legal capacity to contract as if she were sole, except as otherwise provided by law." "The husband and wife may contract with each other," etc. Section 4497. "All damages which the wife may be entitled to recover for injuries to her person or reputation are her separate property." Section 4489. "The wife must sue alone *** for injuries to such property, *** or for all injuries to her person or reputation," etc. Section 4493. There are other sections bearing more or less remotely upon this subject. It may be said that the last-quoted section was not enacted with a view to precisely the case here presented; but these sections, the last included, have the effect of abrogating the fiction of legal identity, and seem thereby, except as otherwise prescribed, to destroy the foundation of the common law in its application to questions touching the rights of husband and wife inter se.

In Bruce v. Bruce, 95 Ala. 563, 11 So. 197, where the wife sued the husband in detinue, the court said:

"Our conclusion is that, if the suit is one which the statute requires to be brought in the name of the wife alone, it may be prosecuted against her husband, if he is the party responsible for the violation of the right to be vindicated by the suit. The effect of the statute is that the legal rights of the wife as against her husband may be enforced by legal remedies."

In Cook v. Cook, 125 Ala. 583, 27 So. 918, 82 Am.St.Rep. 264, the court, after referring to the decision in Bruce v. Bruce, said that:

"The right to sue her husband to recover from him possession of her realty rests upon the same statutory provision
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    • United States
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    • September 9, 1955
    ...which she should not be deprived by a statute which operated upon her only after her right had been acquired. In Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 338, 6 A.L.R. 1031, the wife sued her husband for assault and battery. Judgment for plaintiff was affirmed. The court '* * * The wife......
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