Wright v. Wright

• Decision Date: 07 March 1952
• Docket Number: Nos. 33808,33809,No. 2,s. 33808,2
• Citation: 70 S.E.2d 152,85 Ga.App. 721
• Parties: WRIGHT v. WRIGHT (two cases)
• Court: Georgia Court of Appeals

Page 152

70 S.E.2d 152

85 Ga.App. 721

WRIGHT v. WRIGHT (two cases).

Nos. 33808, 33809.

Court of Appeals of Georgia, Division No. 2.

March 7, 1952.

Rehearing Denied March 20, 1952.

Syllabus by the Court.

1. Husband and wife were considered as one person at common law, and, the common law not having been changed by statute in this respect in this State, neither one may maintain a civil action against the other based on a tort. This is true regardless of whether the civil action is based upon simple negligence, wilful misconduct, or wanton and malicious misconduct.

2. While under the public policy of this State, an unemancipated minor child has no cause of action against a parent for simple negligence, such child may maintain an action for personal injury against a parent for a wilful or malicious act, provided it is such an act of cruelty as to authorize forfeiture of parental authority.

Companion suits were filed in the Superior Court of Richmond County, against Ralph F. Wright, by Hazel Moody Wright, his wife, and by Doris Wright, his daughter, by Hazel Moody Wright as next friend. The petitions allege in substance that the plaintiffs were on May 26, 1951, riding as guests in an automobile owned and operated by the defendant; that the defendant was under the influence of intoxicants, and was driving at a rapid and excessive rate of speed of approximately sixty miles per hour; that he did not have the car under control; that he approached a railroad crossing, at which point there is a dip in the road, but failed to stop or slow down before crossing the railroad tracks; that upon hitting the dip in the road he completely lost control of the car and, after careening from one side to the other, turned over twice, landing in a ditch some two hundred feet away from the railroad crossing, as a result of which the plaintiffs each received certain described injuries; that the acts of the defendant were wilful, wanton and malicious, and were done knowing that in so operating the car he was endangering the lives and health of the petitioners, and with a total disregard of the injuries which they would and did suffer in consequence. The defendant is specifically charged with negligence in driving the automobile at an excessive rate of speed, in unlawfully operating the automobile while under the influence of intoxicants, in failing to keep the automobile under proper control, in failing to reduce speed at the railroad crossing where it was plainly visible that said crossing was in a dip and was rough and dangerous, and in acting wilfully, wantonly, and endangering the lives of the petitioners. The petition of Hazel Wright alleges that, about 15 minutes before the wreck, she had admonished the defendant as to his speeding and reckless driving and requested him either to reduce his speed or to let petitioner out of the automobile without avail. The petition of Doris Wright alleges that she is ten years of age and, in view of her immature age, did not feel called upon to admonish the defendant as to the probable result of his wanton and dangerous manner of driving the automobile.

Both petitions were dismissed upon general demurrer, and the exceptions are to these judgments.

Harris, Chance & McCracken, Augusta, Thurmond, Lybrand & Simons, Aiken, S. C., for plaintiff in error.

Fulcher & Fulcher, Augusta, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts.)

1. Able counsel for the plaintiff in error--while recognizing the fundamental concept that at common law husband and wife were considered as one person, for which reason neither could bring a civil action against the other, see Heyman v. Heyman, 19 Ga.App. 634, 92 S.E. 25; Carmichael v. Carmichael, 53 Ga.App. 663, 187 S.E. 116; Central of Ga. Ry. Co. v. Cheney, 20 Ga.App. 393, 93 S.E. 42; and further recognizing that the law is settled in this State that one spouse cannot sue the other for injury resulting from simple negligence, and while further conceding that the weight of authority in this country would bar a suit of this type--nevertheless urge that the better rule, as illustrated by Fiedler v. Fiedler, 42 Okl. 124, 140 P. 1022, 52 L.R.A.,N.S., 189, 6 A.L.R. 1045, Crowell v. Crowell, 181 N.C. 66, 106 S.E. 149, Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 6 A.L.R. 1031, and other cases, is to the effect that a denial of recovery for a wilful and malicious tort should not be predicated on grounds of public policy, since such acts, by their very nature, end in disruption of the home and frequently in criminal prosecution, and since the changed status of modern woman renders archaic the legal anomoly which extends redress by way of the criminal and divorce courts, but denies it to her in a civil action. It is readily apparent that there may be merit in this contention. Nevertheless, our Code, § 53-501 specifically recognizes the principle of the common law that the civil existence of the wife is merged in that of her husband, excet so far as the law chooses to recognize her separately. Our legislature has never created a right of action in one spouse for personal injury wilfully inflicted by the other, any more than a right of action for personal injury negligently inflicted, and there is no basis in the common law from which such distinction might be drawn. Our Supreme Court in Eddleman v. Eddleman, 183 Ga. 766, 189 S.E. 833, 109 A.L.R. 877, quoted with approval the case of Strom v. Strom, 98 Minn. 427, 107 N.W. 1047, 6 L.R.A.,N.S., 191, 116 Am.St.Rep. 387, in which it was held that a wife could not bring a civil action against her husband for injuries resulting from assault and battery, holding in conclusion: 'We prefer the rule of the Strom Case, and think it should be adhered to until such time as the Legislature shall deem it wise and prudent to open up a field for marring or disturbing the tranquillity of family relations, heretofore withheld as to actions of this kind'. [183 Ga. 766, 189 S.E. 834.] Nor will an action for malicious prosecution lie, as between husband and wife. Holman v. Holman, 73 Ga.App. 205, 35 S.E.2d 923.

We therefore hold that there is not, in this State, any right of action in one spouse against another for a personal tort not involving any property right, and that this is true regardless of the fact that the tort is wantonly and maliciously inflicted. The trial court did not err in sustaining the general demurrer as to case No. 33808.

2. As to the question involved in case No. 33809, whether an unemancipated minor child may sue its parent under like conditions, the situation is somewhat different. The text quotation found in Chastain v. Chastain, 50 Ga.App. 241(1), 177 S.E. 828 that: "A minor child has no civil remedy against its parents, or either of them, or those standing in loco parentis, for cruel and abusive treatment or for injuries resulting from negligence"--is not only obiter as to any right of action founded upon a wilful and malicious act, but is, perhaps, the result of textbook misconception. This problem was discussed in Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 907, 71 A.L.R. 1055, as follows: 'The English text-writers of the nineteenth century appear to have been unanimous in the opinion that a child might have a cause of action for an assault committed by the father. In the works of these authors it is assumed or unequivocally declared that a malicious injury done to...