Sessions v. Parker, 8500.

• Decision Date: 09 February 1932
• Docket Number: No. 8500.,8500.
• Citation: 174 Ga. 296,162 S.E. 790
• Parties: SESSIONS. v. PARKER.
• Court: Georgia Supreme Court

174 Ga. 296

162 S.E. 790

SESSIONS.

v.PARKER.

No. 8500.

Supreme Court of Georgia.

Feb. 9, 1932.

Syllabus by the Court.

In this state a married woman who is living separate from her husband can maintain an action for damages against a third person for the alienation of her husband's affections and for the loss of her consortium.

Questions certified by Court of Appeals.

Action between Mrs. J. G. Sessions and Mrs. E. N. Parker, in which the former appealed to the Court of Appeals, and the Court of Appeal certified a question.

Question answered.

C. M. Dobbs, of Marietta, and McElreath & Scott, of Atlanta, for plaintiff in error.

Alston, Alston, Foster & Moise, of Atlanta, and L. M. Blair, of Marietta, for defendant in error.

ATKINSON, J.

The Court of Appeals certified the following question to the Supreme Court for decision: "Can a married woman who is living separate from her husband maintain an action for damages against a third person for the alienation of her husband's affections and for the loss of her consortium?" It is declared in section 1703 of the Code of 1863, which was adopted by the Legislature and has the force of a statute: "If a tort be committed upon the person or reputation of the wife, the husband may recover therefor; if, however, the wife is living separate from the husband she may sue for such torts, and also torts to her children, and recover the same to her use. In like manner, when separated from the husband, she may enforce contracts made in reference to her own acquisitions." This law was embodied in the succeeding Codes in the same language until the Code of 1882. In that Code it was section 1755. In the meantime, the act of 1866, commonly called the Married Woman's Act, was adopted by the Legislature (Ga. Laws 1866, p. 146), which declared: "That from and after the passage of this act all the property of the wife at the time of her marriage, whether real, personal or choses in action, shall be and remain the separate property of the wife, and that all property given to, inherited or acquired by the wife during coverture shall vest in and belong to the wife, and shall not be liable for the payment of any debt, default, or contract of the husband." This act was embodied in the Code of 1882 as section 1754. While the Code of 1882 was in vogue, the case of City of Atlanta v. Dorsey, 73 Ga. 479, was decided on February 7, 1885. It was said in the opinion: "The single question presented, therefore, in this case is, can a married woman, living with her husband, sue for a tort, being a physical injury to her person, in her own name?" The ruling of the court was: "A wife, although living with her husband, may sue and recover in her own name for a tort committed to her person causing physical injury to her. Section 1755 of the Code, in so far as it restricts the right of a married woman to sue in such a case, is modified by section 1754." After this decision, the substance of said section 1755, with some modifications, was made section 2475 in the Code of 1895, which reads as follows: "If a tort be committed upon the person or reputation of the wife, the husband or wife may recover therefor; if the wife is living separate from the husband; she may sue for such torts, and also torts to her children, and recover the same to her use. She may enforce contracts made in reference to her own acquisitions."

In this modified form, the law was carried into the present Civil Code of 1910, as section 2994. The Codes of 1895 and 1910 were both adopted by the Legislature, and the said section in each Code has the binding effect of a statute. The modification most pertinent to the present inquiry is substitution of the words "or wife" after the word "husband" in the second line of the said section which was section 2475 in the Code of 1895 and section 2994 in the Code of 1910. This change in the codification of the law was intended to give effect to the decision in City of Atlanta v. Dorsey, supra, holding that a married woman may sue alone for a tort committed to her person while living with her husband. The Married Woman's Act as embodied in section 1754 of the Code of 1882 is now embodied in section 2993 of the Code of 1910, which for convenience will be repeated: "All the property of the wife at the time of her marriage, whether real, personal, or choses in action, shall be and remain the separate property of the wife; and all property given to, inherited, or acquired by the wife during coverture shall vest in and belong to the wife, and shall not be liable for the payment of any debt, default, or contract of the husband." In the Civil Code 1910, § 2992, it is declared: "In this State the husband is the head of the family, and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit, or for the preservation of public order." In Huff v. Wright, 39 Ga. 41, 43, it was said with reference to the above-mentioned Married Woman's Act: "This change of the law entirely changes the relation which married women bear to their husbands, so far as their estate in their property is concerned. Husband and wife are no longer a unit, one person in law, with all the property vested in the husband as the head of the family, and subject to his debts, but they are, in law, so far as property is concerned, two distinct persons, with distinct and separate rights. In a word, the common law rule upon this subject, no longer prevails in this State. And every married woman entering into the matrimonial relation, since the abrogation of the common law rule, remains, as to her property, a feme sole, without the necessity even of a trustee to protect it, with power to purchase, hold, and convey property, contract and be contracted with, sue and be sued, as a feme sole." A further statutory provision of the law is to be found in the Civil Code 1910, § 3652, where it is declared: "For every violation of a contract express or implied, and for every injury done by another to person or property, the law gives a right to recover, and a remedy to enforce it. Such a right is a chose in action, and such a remedy is an action or suit at law." In the light of the foregoing statutes and decisions by this court, the able opinion of Mr. Justice Smith of the Supreme Court of Arkansas in the case of Weber v. Weber, 113 Ark. 471, 169 S. W. 318, L. R. A. 1915A, 67, Ann. Cas. 1916C, 743, is so apposite, and covers the case at hand so completely that it is quoted at length:

"A question is raised, however, which is one of first impression in this state, and which has received our earnest consideration. This question is the right of the wife to maintain an action for damages for the alienation of the affections of her husband. There is conflict among the authorities as to whether this right of action existed in favor of the wife, or not, at common law, and, although there are numerous cases which hold that she had no such right, the better view appears to be that she did. Common-law causes of action for a personal injury to a married woman belonged to her; but the husband was required to sue with her to recover compensation because of her disability to sue. The husband's right of action abated at the death of the wife; but the cause of action survived to the wife and could be maintained by her after the death of her husband. Her right of action existed, but could not be set in motion unless her husband joined, and, by reason of the disability of coverture, it remained in abeyance and could not be prosecuted in her own name. Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553; Smith v. Smith, 98 Tenn. 101, 38 S. W. 439, 60 Am. St. Rep. 838. The case of Bennett v. Bennett, supra, is a leading authority on this subject, and the opinion in that case reviewed the authorities upon this question, and, in upholding a judgment in favor of the wife, it was there said: 'We think the judgment appealed from should be affirmed, upon the ground that the common law gave the plaintiff a right of action, and that the Code gave her an appropriate remedy.' In 1 Cooley on Torts (3d Ed.) p. 475, it was said: 'At least 20 states now hold that such an action may be maintained, some basing their conclusion upon common-law principles and some, more or less, upon the various enabling statutes in favor of married women, which have been passed in recent years.' A number of cases support the wife's right to recover for the alienation of the affections of her husband, as an invasion of her personal rights, while other cases regard the wife's right to the consortium of her husband as a property right. One of the leading cases taking this latter view is that of Jaynes v. Jaynes, 39 Hun (N. T.) 40, in which case it is there said: 'These reciprocal rights may be regarded as the property of the respective parties, in the broad sense of the word "property, " which includes things not tangible or visible, and applies to whatever is exclusively one's own.' And it is there further said: 'But as, at common law, the husband and wife were regarded as one person, and her personal rights were suspended, or incorporated with bis, during coverture, so that if she were injured in her person or property she could bring no action for redress without her husband's concurrence, and in his name as well as her own, * * * she was practically precluded from suing for damages caused by alienating the affections of her husband and enticing him away. * * * Her disability in that respect, we think, has been removed in this state by legislation. A married woman may now, while married, sue and be sued in all matters having relation to "her sole and separate property, " or for any injury to her person or character, the same as if she was sole, * * * and it is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate...