Maysville & L. R. R. Co. v. Herrick

• Decision Date: 04 April 1877
• Citation: 76 Ky. 122
• Parties: Maysville & Lexington R. R. Co. v. Herrick.
• Court: Kentucky Court of Appeals

76 Ky. 122

Maysville & Lexington R. R. Co. v. Herrick.

Court of Appeals of Kentucky.

April 4, 1877

APPEAL FROM BOURBON CIRCUIT COURT.

CUNNINGHAM & TURNEY AND W. H. WADSWORTH FOR APPELLANT.

1. The court below erred in not postponing the trial on the affidavits filed.

2. The appellee, a married woman, who came to this state in 1870 from Ohio, without her husband, he having before that time resided in this state, could not sue alone. Her status and the marital rights of her husband were fixed by the Revised Statutes in force in 1870, providing that " A married woman who shall come to this from another state or country without her husband, he never having resided here, may contract, buy and sell, sue and be sued, as an unmarried woman," etc. (Revised Statutes, sec. 8, art. 2, chap 47.)

Sec 10, art. 2, chap. 52, General Statutes, providing that " a married woman who shall come to this commonwealth without her husband, he residing elsewhere, may acquire property, contract, and bring and defend actions as an unmarried woman," etc., does not apply to one who came into the state before or was residing in this state when the General Statutes took effect, December 1, 1873.

" Who shall come" in said sec. 10, applies alone to future cases where married women come, or have come to this state since the General Statutes took effect. The act adopting the General Statutes, sec. 3, art, 1, p. 138, provides that their adoption shall not affect " any right, established, accrued or accruing," etc.

3. Since the adoption of the General Statutes, a married woman can in no case act, contract, or sue as a feme sole, unless enabled by the decree of a court of competent jurisdiction. Any other construction would give to the wives of aliens privileges not enjoyed by citizens of the state.

So far as married women, abandoned by their husbands while residing in this state, are concerned, the question is closed against further argument by the decisions of this court. (Uhrig v. Horstman & Sons, 8 Bush, 172; Hannon v. Madden, 10 Bush, 664.)

Sec. 10, art. 2, chap. 52 of the General Statutes, is a complete departure from sec. 8, art. 2, chap. 47 of the Revised Statutes, and intended to confer upon the wives of aliens, coming into the state without their husbands, they " " residing elsewhere," the right to appeal to the proper court, and thus be permitted by the proper decree to act as unmarried women, as provided in secs. 5 and 6 of the same article in reference to wives generally. The Revised Statutes, in the section quoted, intended to adopt what the revisers understood to be the rule of the common law, that the wife of an alien, who had never resided in the kingdom, coming into England without him, might act as a feme sole.

Some of the English judges erroneously held, that by the common law, if the husband was an alien, and had never resided in the country, the wife might be sued as a feme sole, as in Kay v. Duchess of Pienne, 3 Camp. 123; and Shelton v. Busnach, 4 Moo. & Scott, 678. But the twelve judges of England decided otherwise, and restored the rules of the common law in Marshall v. Rutton, 8 T. R. 547.

Sec. 6 of art. 2, chap. 52, General Statutes, applies to all wives who have a residence in this state, and the wives of aliens are included by the terms of the section. Nevertheless section 10 deems it necessary to provide that wives of aliens may also act separately, to remove any doubt on the subject which might grow out of the fact of their alienage.

4. As the appellee's husband was a non-resident, a bond for costs should have been given before the commencement of the action.

BRENT & MCMILLAN FOR APPELLEE.

1. Appellee " came to this commonwealth without her husband, he residing elsewhere," in 1870, and thus brought herself within the provisions of sec. 10, art. 2, chap. 52, General Statutes, authorizing her to " acquire property, contract, and bring and defend actions as an unmarried woman," and therefore it was not necessary that she should join her husband as plaintiff with her, or give bond for costs on account of his non-residence.

The construction of the words " who shall come" etc., in said section 10, contended for by counsel for appellant, would make it not only operate as a repeal of sec. 8, art. 2, chap. 47, Revised Statutes, but also to deprive all married women of the privilege of bringing actions, who were authorized to do so by said sec. 8. (Broaddus v. Broaddus, 10 Bush, 299; Bailey v. Commonwealth, 11 Bush, 688; Sec. 17, chap. 21, General Statutes; Tilson v. Henry, 17 Vermont, 479; People v. Utica Ins. Co., 15 J. R. 358.)

2. As to the true rule as to exemplary damages, see Wallace v. The Mayor, 2 Hilton, 440; and as to gross negligence, see 7 Bush, 235.

OPINION

LINDSAY CHIEF JUSTICE:

The appellee, Nannie J. Herrick, is a married woman. Her husband was at one time a citizen of this state, but removed to Ohio some years since. In 1870 Mrs. Herrick returned to Kentucky, and has since that time been an inhabitant of Paris, Bourbon County. Her husband has continued to reside in Ohio. Mrs. Herrick instituted this action in her own name, and did not make her husband a party plaintiff or defendant; and the first question to be determined is, whether under these circumstances she can maintain it.

Section 10, article 2, chapter 52, General Statutes, provides that " a married woman who shall come to this commonwealth without her husband, he residing elsewhere, may acquire property, contract, and bring and defend actions as an unmarried woman. But her husband may be restored to his marital rights by a judgment of the circuit court of the county of her residence, on petition in equity to which she is a party, either plaintiff or defendant. The court shall provide for the payment of the wife's indebtedness out of her property, including choses in action, and may make equitable orders in regard to the remainder, and pending actions."

Mrs Herrick is within the description of persons intended to be benefited by this statute, unless she is excluded because she came to Kentucky prior to the...