Tobin v. Gelrich
| Decision Date | 07 February 1931 |
| Citation | 34 S.W.2d 1058 |
| Parties | TOBIN v. GELRICH. |
| Court | Tennessee Supreme Court |
Goodpasture & Carpenter, of Nashville, for plaintiff in error.
Hume & Armistead, of Nashville, for defendant in error.
Mrs. Mary Gelrich was injured while riding in her husband's automobile. She sued the husband, charging that the injuries resulted from his acts of negligence.
Mrs. Gelrich died after commencing her suit, and it was revived in the name of the plaintiff as administrator. While prosecuted in the name of the administrator, it is the right of action commenced by Mrs. Gelrich and which she would have had in case death had not ensued. Shannon's Code, § 4029a3.
The defendant demurred to the declaration upon the ground that the plaintiff cannot maintain the action for injuries to the wife resulting from the tortious act of the husband committed during coverture. The demurrer was sustained, and plaintiff appealed.
It is insisted that chapter 126, Acts of 1919, known as the Married Women's Emancipation Law, abrogated the common-law rule, and changed the status of the wife so that she could sue the husband for tort. And it is further insisted that the rule as in Wilson v. Barton, 153 Tenn. 250, 283 S. W. 71, forbidding the wife's action for injuries inflicted by assault and battery, does not extend to actions for negligence.
By the common law, neither the husband nor the wife could maintain an action against the other for wrong committed during coverture. The rule rested upon the nature of the relation, the unity of interest of husband and wife in each other's respective rights and duties and was not limited to actions for willful wrongs, such as assault and battery, but embraced alike all torts. Heyman v. Heyman, 19 Ga. App. 634, 92 S. E. 25; Perlman v. Brooklyn City R. Co., 117 Misc. Rep. 353. 191 N. Y. S. 891; Woltman v. Woltman, 153 Minn, 217, 189 N. W. 1022; Strom v. Strom, 98 Minn. 427, 107 N. W. 1047, 6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387; Smith v. Smith, 29 Pa. Dist. R. 10; Oken v. Oken, 44 R. I. 291, 117 A. 357.
Referring to cases involving the right of one spouse to maintain an action for tort against the other, in notes under Roberts v. Roberts, 29 A. L. R. 1482, the annotator said:
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