Spector v. Weisman, 4909.

• Decision Date: 07 April 1930
• Docket Number: No. 4909.,4909.
• Parties: SPECTOR v. WEISMAN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

59 App. DC 280, 40 F.2d 792 (1930)

SPECTOR v. WEISMAN.

No. 4909.

Court of Appeals of District of Columbia.

Argued March 4, 1930.

Decided April 7, 1930.

Jos. L. Tepper, David L. Blanken, and T. Morris Wampler, all of Washington, D. C., for appellant.

Lucius Q. C. Lamar, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and GORDON, Associate Justice of the Supreme Court of the District of Columbia.

MARTIN, Chief Justice.

This action was brought by appellant as plaintiff below to recover damages for personal injuries sustained by her in an automobile accident occasioned, as alleged, by the negligence of the defendant, now the appellee. The defendant by plea denied the charge of negligence, and afterwards filed an amended plea alleging that since the commencement of the case the plaintiff and defendant had been united in marriage and that the marriage relation still existed between them. The plaintiff demurred to the amended plea as bad in substance, but the demurrer was overruled by the court. The plaintiff then elected to stand upon her demurrer, and judgment was entered against her upon the amended plea. The present appeal was then taken.

The sole question raised by the appeal is whether in this jurisdiction a married woman may maintain an action against her husband for a tort committed by him upon her person before coverture, where the action is begun but not brought to judgment before the marriage of the parties.

We agree with the ruling of the lower court that such an action cannot be maintained under our law.

Under the common law, husband and wife were regarded as one person, and neither could maintain an action against the other during coverture for a tortious injury inflicted by one upon the person of the other. "At common law no cause of action arose in favor of either husband or wife by reason of any injury to the person or character of one committed by the other, for instance, libel or slander. This doctrine of nonliability is founded not on the inability of the one spouse to sue the other, but on the principle that husband and wife are one person in law, and it is well exemplified in the cases which hold that a wife after an absolute divorce from her husband, though she is then fully capable of suing him, still can maintain no action against him for a tort or wrong committed by him during the marriage relation against her person or character." 13 R. C. L. 1394. This rule applied where the injury was committed and the action was begun before the marriage of the parties. "And if she marries him after the institution of her action against him for a tortious injury to her person, the action must be dismissed." 30 C. J. 955.

"The canon in question was founded upon the legal fiction that there was an identity of the parties to the marriage contract, and the husband and wife were one; hence a party could not sue himself. The all-important feature of a lawsuit...