Story v. Downey
| Decision Date | 11 August 1890 |
| Citation | 20 A. 321,62 Vt. 243 |
| Parties | GEO. C. STORY AND WIFE v. M. DOWNEY AND WIFE |
| Court | Vermont Supreme Court |
JANUARY TERM, 1890
This was an action on the case for slander, and was heard on general demurrer to the declaration at the September Term 1888, TAFT, J., presiding. Demurrer overruled. The defendants except. The case appears in the opinion.
The judgment is reversed, demurrer sustained, declaration adjudged insufficient, and judgment rendered for defendants.
F.W McGettrick, for the defendants, referred to No. 140 Acts of 1884.
Wilson & Hall, for the plaintiffs.
This was an action of slander, brought to recover on account of slanderous words that are alleged to have been spoken by the defendant wife of and concerning the plaintiff wife, and was heard upon general demurrer to the declaration. The grounds of demurrer urged are the joinder of the husbands as plaintiffs and defendants. At common law the husbands were properly joined both as parties plaintiff and defendant, but it is claimed that the statutes of this State have changed the common law, so that the plaintiff wife should have brought the action in her own name, and that the defendant wife should have been sued alone.
Section 2321, R. L., gave a married woman who was carrying on business in her own name the right to sue and be sued in her own name in matters connected with such business in the same manner as if she were unmarried. That section was amended by No. 140 of the Acts of 1884. The first section of this act enlarges the rights of a married woman by giving her the right to make contracts with any person other than her husband, and to sue and be sued upon the same without joining her husband as plaintiff or defendant. The second section provides that all personal property and rights of action acquired by a married woman during coverture, except by her personal industry or by gift from her husband, shall be held to her separate use. The third section provides, among other things, that a husband shall not be liable for the torts of his wife unless committed by his authority or direction.
The evident purpose and intention of the Legislature in the enactment of the statutes above referred to was to give a married woman full control of the property and rights of action mentioned, to deprive the husband of all control or interest in the same, and to leave her subject to the general rule that actions at law must be brought in the name of the party who has the legal interest. The reasons assigned at common law for requiring the husband to join with the wife in suits of this character no longer exist in this State, and she is left to pursue her remedy in the same manner as if a femme sole.
The right of action to recover for slanderous words spoken of the plaintiff wife during coverture was acquired, or originated at the time the words were spoken, and the judgment that might be recovered in the action would be to her separate use; so we see no reason for holding that a different rule should be prescribed in deciding the question as to who should bring the suit, than the one that generally prevails in the case of persons who are under no legal disability.
In Wright et ux. v. Burroughs, heard at the last term of Supreme Court in Addison County, and reported in 61 Vt 390, 18 A. 311, involving the right to join the husband in an action...
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