Smith v. Smith

• Decision Date: 09 January 1897
• Citation: 38 S.W. 439
• Parties: SMITH v. SMITH et al.
• Court: Tennessee Supreme Court

Page 439

38 S.W. 439

SMITH v. SMITH et al.

Supreme Court of Tennessee.

January 9, 1897.

Appeal from circuit court, Davidson county; Claude Waller, Judge.

Action by Sallie Smith against Hugh F. Smith and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Cooper & Cooper, for appellant. Vertrees & Vertrees and J. M. Quarles, for appellees.

McALISTER, J.

The plaintiff, a married woman, commenced this suit in the circuit court of Davidson county, against Hugh F. Smith, her brother-in-law, and Mary Smith, his wife, to recover damages for alienating the affections of plaintiff's husband, John M. Smith, by means of putting in circulation certain false, malicious, and defamatory statements concerning the character of plaintiff. The declaration further charges that, by reason of said malicious conduct on the part of the defendants, her husband, the said John M. Smith, in August, 1895, abandoned plaintiff, and has since refused to live with her. The husband, John M. Smith, was also made a party defendant. The defendants interposed a demurrer to the declaration, assigning among other causes that the false and malicious charges which caused the alienation of the affections of plaintiff's husband were spoken prior to the abandonment, and that the cause of action is therefore one that cannot be prosecuted by the wife alone. The circuit court sustained the demurrer, and dismissed the suit.

At common law, on account of the well-settled doctrine of marital unity, the right of a married woman to prosecute an action in her own name for the redress of personal injuries was denied. The cause of action for a personal injury to a married woman, whether committed before or after marriage, at common law, belonged to her; but, on account of the disability of coverture, she had no remedy, unless the husband joined in bringing the suit for conformity. The right of action was hers; but, owing to the legal fiction of the unity of husband and wife, she could not assert it. "The husband and wife were treated as one person, and marriage operated as a suspension, in most respects, of the legal existence of the latter. But marriage only suspended personal rights. It did not destroy them, or transfer them all absolutely to the husband. While it was an absolute gift to him of her goods and chattels, it was only a qualified gift to him of her choses in action, depending upon the condition that he reduce them to possession during coverture, or otherwise, upon his death, they belonged to her." 1 Bright, Husb. & Wife, pp. 34-36; Clancy, Mar. Wom. 109; Reeve, Dom. Rel. (4th Ed.) 1; 2 Kent, Comm. (11th Ed.) 116. Says Mr. Bishop: "It is common doctrine, upon which the decisions in all the states of the Union and of England are in harmony, that, on the death of the husband, the wife's choses in action, not reduced by him to possession, survive to her. She takes them, not as his heir, personal representative, or administratrix, but they revert to her in her own right. And we have seen," says the author, "that this doctrine applies as well to the wife's postnuptial choses in action as to her antenuptial ones." Bish. Mar. Wom. § 171. It is well settled that torts committed upon a married woman are comprehended within the definition of the term "choses in action." People v. Tioga Common Pleas, 19 Wend. 73, 74; Berger v. Jacobs, 21 Mich. 215; Railroad Co. v. Dunn, 52 Ill. 260; 3 Am. & Eng. Enc. Law, tit. "Chose in Action." Says Mr. Reeves, in his work on Domestic Relations (page 87): "Although the husband is entitled to all the property which the wife acquires during coverture, yet, if damages be claimed for an injury to her person or reputation during coverture, those damages belong to her, and she must be joined with her husband in the suit. When damages for such an injury are collected, they belong to the husband; but, in case of his death before they are reduced to possession, they survive to the wife in the same manner as if the injury had been received before marriage." Says Mr. Bishop: "If she [the wife] is slandered, or an assault and battery is committed upon her, or any trespass or actionable wrong, she may, on becoming discovert, sue the wrongdoer, the same as though she had been sole when she received the injury, though, if the suit is brought in the lifetime of her husband, he must be made a party plaintiff with her, in consequence of the general rule of law which places the wife under the protection of her husband. When the result of the wrong becomes money, in the form of damages paid by the wrongdoer, the wife, though she can receive, cannot hold, it, and the title glides to the husband, making the money his." Bish. Mar. Wom. § 705. So that it is plain, at common law, a married woman had a cause of action against a party who wrongfully enticed away or alienated the affections of her husband, but, by reason of the disabilty of coverture, that right remained in abeyance, and could not be prosecuted by the feme covert in her own name. If the husband died, or there was an absolute divorce, the right of action remained the property of the wife, and might be prosecuted by her as a feme sole. Legg v. Legg, 8 Mass. 99; Lodge v. Hamilton, 2 Serg. & R. 491; Postlewaite v. Postlewaite (Ind. App.) 28 N. E. 99.

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