Postlewaite v. Postlewaite
| Decision Date | 27 May 1891 |
| Docket Number | 101 |
| Parties | POSTLEWAITE v. POSTLEWAITE |
| Court | Indiana Appellate Court |
From the Jackson Circuit Court.
Judgment reversed, and the cause remanded.
B. H Burrell, for appellant.
W. K Marshall, for appellee.
The appellant brought an action in the court below against the appellee for damages for alienating the affections of her husband, who is the appellee's son.
There was a demurrer to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and, upon issues joined, the cause was submitted to a jury for trial. The jury returned a verdict in favor of the plaintiff, who is the appellant here, for $ 500, and the court rendered judgment thereon. This is an action to review the judgment and proceedings then had.
The complaint in the present case sets out at length the proceedings and complaint in the original action, and assigns as error the overruling of the demurrer to the complaint in that action.
In the present case a demurrer to the complaint was overruled, and this ruling is the error assigned and relied upon in this court.
There is much redundancy in the original complaint, and there are in it some statements inconsistent with and contradictory of each other, but we think, when taken as a whole, the complaint fairly makes a charge of alienating the affections of the appellant's husband and enticing him into leaving her.
It may be well enough to state here that the complaint we are about to consider discloses the fact that prior to the commencement of the original action the appellant obtained a decree of divorce from her husband, and was, therefore, at the time the action was commenced, in all respects, sui juris.
In the case of Logan v. Logan, 77 Ind. 558, it was held by a majority of the Supreme Court that a married woman could not maintain such an action. The grounds upon which the decision was based were very meagerly discussed, but seem to be these--that the wrong complained of was neither an injury to her person nor to her character, but that the statute only clothed her with the right to bring actions for injury to her person or character, and therefore did not invest her with the power to maintain this action.
So far as we are advised, this is the only case in which the subject has received any consideration at the hands of our Supreme Court. It must be seen at a glance that there is at least one essential difference between the case cited and the one we are now considering. In the case under consideration the plaintiff has been divorced from her husband, while in the case of Logan v. Logan, supra, she was still a married woman, able to maintain only such actions as the statutes of the State specially enabled her to bring. The very foundation, then, of the ruling in that case has no existence whatever in the case at bar.
The question with which we are here concerned is not whether a married woman has the capacity to enforce a right of action given her by the law, but whether such a right has at all accrued to her; for if it has, she being now sui juris, no one will doubt her ability to maintain the action.
We think, therefore, that it may be truthfully said that the precise question we are called upon to decide has never been passed upon, and is, consequently, one of first impression in Indiana. Whether, by reason of more recent statutes, a woman who is still under coverture may now maintain such an action also, we need not and do not determine.
The theory of the common law was that the entire separate legal existence of the wife was merged in that of her husband who was the dignior persona. As Blackstone states it: "The inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; therefore the inferior can suffer no loss or injury." 3 Black. Com. 143.
It is true, that in the absence of domestic statutes to the contrary, the common law prevails in Indiana. Section 236, R. S. 1881. But so many innovations have been made upon the common law in relation to the status of married women in our State, that it can no longer be said to be in force as a rule, but only in exceptional cases.
It seems that our laws in relation to the rights and obligations of married women, as now existing, while based to some extent upon common law principles, have grown into a kind of special system, as it were, evolved, not only from the common law of England, but more largely, perhaps, out of the civil law of Rome.
It was under the common law that the legal fiction prevailed by reason of which the separate legal existence of the wife was regarded as swallowed up, so to speak, in that of the husband. By the marriage the latter became the owner of all her personal property, provided he reduced it to possession, and of the usufruct and rents and profits of her land, so long as they both lived. She could not bind herself by any sort of contract; could not carry on any trade or business, and all her earnings, the fruits of her labor and skill, belonged absolutely to her husband. She could, of course, make no conveyance of her separate real estate, except by his consent and by his joining with her in a deed. To this extent the common law idea of the legal unity of husband and wife still prevails in Indiana. Johnson v. Jouchert, 124 Ind. 105, 24 N.E. 580.
The civil law, on the other hand, rests upon an entirely different basis. By its provisions there was no such thing as a legal unity of the husband and wife in relation to their civil and property rights. Their marriage was more in the nature of a partnership, and hence there was no such thing as the merger of the inferior being into that of the superior. She never surrendered any portion of her separate property, whether personal or real, by virtue of the marriage, and she remained liable for her individual debts, during, as well as before, the existence of the marital relations. She was to all intents and purposes, a femme sole.
It has been the aim and tendency of our legislation to combine the better features of these two schemes, and, as a result, we have evolved the system which now obtains, not only in our own, but in many of our sister States.
A marked feature of this legislative tendency has been the constant disposition toward abrogating the common law unity of the husband and wife. Ever since the admittance of the State into the great sisterhood statutes have been framed, from time to time, clothing married women with new rights, and enabling them to enforce these rights.
Thus it has been provided, in derogation of the common law, that both the personal and real property of a wife shall remain hers, and shall not be subject to the husband's debts. And in actions concerning her separate property the right was given her to sue without joining her husband as co-plaintiff. Section 254, R. S. 1881. Indeed there have been but few sessions of the General Assembly in which there was not made some provision enlarging the civil and property rights of married women, until now we have arrived at a point where the several common law disabilities have been, with...
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