Roberts v. Roberts

• Decision Date: 08 June 1923
• Docket Number: 545.
• Parties: ROBERTS v. ROBERTS.
• Court: North Carolina Supreme Court

118 S.E. 9

185 N.C. 566

ROBERTS v. ROBERTS.

No. 545.

Supreme Court of North Carolina

June 8, 1923

Appeal from Superior Court, Madison County; Bryson, Judge.

Action by Orla Roberts against S. B. Roberts. Judgment for plaintiff, and defendant appeals. No error.

The parties are husband and wife. The defendant in company with his wife (the plaintiff), their children, and others, was driving his car on the road between Marshall and Mars Hill and while turning a sharp curve caused his car to collide with one driven by Raburn Hensley. The plaintiff was injured by the collision and thereafter brought suit against the defendant to recover damages for the injuries which she sustained. She alleged various acts of negligence on the part of the defendant causing injury to her hand, blood poisoning, the amputation of a finger, and other personal injuries.

The defendant denied the alleged acts of negligence, pleaded the marriage relation in bar of the plaintiff's recovery, and insisted that it is contrary to the laws of this state and against public policy for the plaintiff to sue the defendant while they are living together as husband and wife.

The issues were answered in favor of the plaintiff, and from the judgment rendered the defendant appealed.

J Coleman Ramsey, of Marshall, and Harkins & Van Winkle, of Asheville, for appellant.

Guy V Roberts, of Marshall, and Thomas S. Rollins, of Asheville, for appellee.

ADAMS J.

The appeal presents the sole question whether a wife can maintain an action against her husband to recover damages for personal injury caused by his negligence, that is, by tort which does not involve an assault or any other kind of willful or intentional wrong. The husband's liability for an assault or other unwarranted and reckless trespass upon the person of his wife has been considered and determined. Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206.

By the theory of the common law the legal existence (the individuality) of the wife was suspended during coverture or incorporated into that of the husband--vir et uxor sunt quasi unita persona, quia caro una et sanguis unus--and upon this fiction depended most of the rights, duties, and disabilities growing out of the marriage relation. Schouler's Dom. Rel. 59. This feigned unity of the persons operated to prevent either spouse from contracting with the other. Upon their marriage the husband acquired the wife's personal property, jure mariti, and consequently she could neither give nor contract to give him what he already owned, and he could neither grant anything to her nor enter into a covenant with her, because he could not contract with or execute a grant to himself. Likewise, says Eversley:

"Neither husband nor wife could sue each other for personal torts committed by one against the other--such as libel, slander, assault and battery, or injury arising out of negligence; and this was so not only on the ground of the merged existence of the wife and their incapacity to acquire civil rights against each other, but also on account of the unseemly spectacle presented by husband and wife seeking pecuniary compensation from each other for personal wrongs." Dom. Rel. 248.

This principle, it may be deduced, has its foundation in regard for the public welfare as well as in the legal fiction of the wife's merged existence. True, in Studies in History and Jurisprudence, 819, Bryce maintained that the wife's position at common law should be regarded as a compromise between the three notions of absorption, of a sort of guardianship, and of a kind of partnership of property, in which the husband's voice nominally prevailed; but this conclusion, if accepted, is not destructive of the common-law doctrine that the nonliability of husband and wife inter se in contract and in tort was based not only upon a concept of the unity of the persons, but upon a sound policy which discouraged the transmutation into a cause of action of trivial or unfortunate matrimonial bickering. Reeve's Dom. Rel. 129; 2 Bl. Com. 442; Eversley's Dom. Rel. 167, 291; Schouler's Dom. Rel. 77. And in the absence of a constitutional or statutory provision permitting a husband and his wife to retain their separate legal identity after marriage, the rule still prevails that husband and wife are a legal unity and therefore incapable of suing each other at law. See citation of authorities in note to Brown v. Brown, Ann. Cas. 1915D, 73; in note to Thompson v. Thompson, 14 Ann. Cas. 881; and in Crowell v. Crowell, supra, concurring opinion.

It is equally true, however, that the tendency of modern legal thought has been not entirely to displace the common law, but to enlarge the rights of married woman even to the extent in some instances of abolishing the common-law fiction. Accordingly, the Legislatures of several states have enacted laws purporting to emancipate married women; the legal interpretation of each law depending upon its phraseology or particular provisions. These various statutes may be divided into two general classes: Those which change, and those which do not change, the foundation of the marriage status. Under the first either spouse, in the absence of a restrictive provision, may sue the other in contract or in tort; but under the second it is generally held that such right of action is not conferred. Naturally, there is diversity of opinion as to whether a particular statute supports the one theory or the other, but the reasoning upon which the various decisions pro and con are based, aptly illustrated by the following authorities, need not further be pursued. Fiedler v. Fiedler, 42 Okl. 124, 140 P. 1023, 52 L. R. A. (N. S.) 189; Brown v. Brown, 88 Conn. 42, 89 A. 889, 52 L. R. A. (N. S.) 185, Ann. Cas. 1915D, 70; Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832, 187 S.W. 460, L. R. A. 1917B, 774, Ann. Cas. 1918C, 773; Prosser v. Prosser, 114 S.C. 45, 102 S.E. 787; Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921; Woltman v.

Woltman (Minn.) 189 N.W. 1022; Heyman v. Heyman, 19 Ga.App. 634, 92 S.E. 25; Dishon v. Dishon, 187 Ky. 497, 219 S.W. 794; Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A. L. R. 236; Newton v. Weber, 119 Misc. 240, 196 N.Y.S. 113; Strom v. Strom, 98 Minn. 427, 107 N.W. 1047, 6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387; Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L. R. A. (N. S.) 699.

We have said...