Scholtens v. Scholtens

• Decision Date: 23 March 1949
• Docket Number: No. 94.,94.
• Citation: 230 N.C. 149,52 S.E.2d 350
• Parties: SCHOLTENS. v. SCHOLTENS.
• Court: North Carolina Supreme Court

52 S.E.2d 350

230 N.C. 149

SCHOLTENS.

v.SCHOLTENS.

No. 94.

Supreme Court of North Carolina

March 23, 1949.

.

Appeal from Superior Court, Nash County; Walter J. Bone, Judge.

Action by G. B. Scholtens against Elizabeth Scholtens for personal injuries sustained by plaintiff while riding as a guest in defendant's automobile. From a judgment overruling a demurrer to the complaint, defendant appeals.

Reversed.

Civil action to recover damages for personal injuries allegedly sustained by plaintiff in automobile wreck as result of actionable negligence of defendant.

The complaint of plaintiff alleges that he and defendant are residents of Miami, Florida, and, by stipulation of parties, the complaint is amended to show that "plaintiff is now and was at the time of the happening of the events complained of and at the time of the commencement of this action the husband of the defendant".

The complaint also alleges, in substance, that while plaintiff was riding as a guest in automobile owned and operated by, and under the sole control of defendant on a certain public highway of North Carolina, U. S. Highway No. 301, at point about four miles north of Enfield, North Carolina, the automobile was wrecked by reason of acts of negligence of defendant in the respects enumerated, as the proximate result of which he, the plaintiff, sustained personal injuries to his great damage, for which he prays judgment.

Defendant demurred to the complaint of plaintiff "for that it appears upon the face thereof that

"(a) The plaintiff has not legal capacity to sue; and

"(b) The complaint does not state facts sufficient to constitute a cause of action", upon the ground that "It appears upon the face of the complaint, as amended by the stipulation filed herein, that, at the time of the happening of the events complained ofand at the time of the commencement of this action and at the present time, the plaintiff was and is the husband of the defendant. It further appears upon the face of the complaint that this is an action in tort whereby the plaintiff seeks to recover for injuries alleged to have been sustained because of the negligence of the defendant."

The cause came on for hearing before the Judge presiding at the November Term 1948 of Superior Court of Nash County, upon the demurrer. And the court being of opinion that the demurrer is not well taken, ordered and adjudged that the demurrer be overruled, and gave defendant time in which to file answer.

Defendant appeals therefrom to Supreme Court, and assigns error.

Thorp & Thorp, of Rocky Mount, for plaintiff appellee.

Spruill & Spruill and F. S. Spruill, all of Rocky Mount, for defendant appellant

WINBORNE, Justice.

In this State may a husband maintain an action against his wife for a personal tort committed by her against him during coverture?

This question was adverted to in the case of Shirley v. Ayers and Shirley, 201 N.C. 51, 158 S.E. 840, but the Court expressly disavowed the necessity of deciding, and did not decide it. That action was instituted by the husband against his wife during coverture, but it was based upon a cause of action which arose prior to their marriage. He was permitted to maintain the action by virtue of the provisions of G.S. § 52-14 by which the liabiltiy of a feme sole for damages incurred by her before marriage shall not be impaired or altered by such marriage.

So, the question is now before this Court for the first time. The trial court was of opinion that the question should be answered in the affirmative. But, in the light of the common law, effective in this State, except as abrogated or modified by statute, we are of opinion to the contrary, and hold that the husband is not authorized by law to maintain such action against his wife.

At common law the husband and wife were considered one, --the legal existence of the wife during coverture being merged in that of the husband, Davis v. Bass, 188 N.C. 200, 124 S.E. 566, and they were not liable for torts committed by one against the other. Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. Ill, 54 L.Ed. 1180, 30 L.R.A, N.S., 1153, 21 Ann.Cas. 921, affirming 31 App.D.C. 557, 14 Ann.Cas. 879. And so much of the common law as has not been abrogated or repealed by statute is in full force and effect within this State. G.S. § 4-1, formerly C.S. § 970. Among other cases see State v. Hampton, 210 N.C. 283, 186 S.E. 251; Merrell v. Stuart, 220 N.C. 326, 17 S.E.2d 458; State v. Batson, 220 N.C. 411, 17 S.E.2d 511, 139 A.L.R. 614; State v. Emery, 224 N.C. 581, 31 S.E.2d 858, 157 A.L.R. 441; Hoke v. Atlantic Greyhound Corp, 226 N.C. 332, 38 S.E.2d 105; Moche v. Leno, 227 N.C. 159, 41 S.E. 2d 369; State v. Sullivan, 229 N.C. 251, 49 S.E.2d 458. And this applies to the common law in respect to rights and disabilities of husband and wife. Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 10, 29 A.L.R. 1479, and numerous other cases.

Since what is said by this Court in the Roberts case, supra, in opinion by Adams, J, is such full treatment of the subject, we quote from it these excerpts: "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". And, "it is equally true, however, that the...