Brown v. . Brown , 121 N.C. 8 ( 1897 )

The action was brought by the plaintiff, Lizzie Brown, wife of J. W. Brown, in her own name, against the defendant, J. R. Brown, the father of her husband. The complaint alleged that the defendant had alienated the affections of her husband and induced him to abandon her and to refuse to contribute anything for her support.

The complaint also contained, as second and third causes of action, allegations that defendant had defamed her character and injured her reputation by maliciously swearing out a warrant against her for assault upon her husband and for causing a disturbance, of which charges she was acquitted, and that defendant had unlawfully caused her (9) arrest and imprisonment. Plaintiff claimed $15,000 damages.

The defendant demurred, upon the ground that there was a defect of parties plaintiff, for that it appeared on the face of said complaint that plaintiff was a married woman, the wife of James W. Brown, who did not join with her in the action, and that it did not appear that the action concerned her separate property or that it was an action between her and her husband, or that she was a free trader.

The demurrer was sustained and an order made, allowing plaintiff to amend the summons by making other parties and to amend her complaint.

From the judgment sustaining the demurrer the plaintiff appealed. The sole question presented is whether a married woman, being abandoned by her husband, can maintain an action in her own name for a tort. This question has not been heretofore decided by this Court. The case is here upon complaint and demurrer, and the allegations of the complaint are at present taken as true.

The complaint alleges that defendant, who is the father of her husband, has, by persuasion and numerous willful and unlawful acts, caused her husband to wholly abandon and neglect her, to her great damage, etc. The demurrer is grounded on a denial of her right to maintain this action in her own name without the joinder of her husband.

The disabilities of married women at common law still exist, as to their person and property, except to the extent of changes by legislation in express terms or by reasonable construction of the same. These changes tend to relax the common-law rules, and must receive a (10) reasonable construction in the spirit of their enactment. Our Constitution and statutes have made very material and important changes in the status of married women in this State by extending protection to their person and separate property, and allowing them the privilege of free traders, suing in their own names, etc., in certain conditions. The Code, 1832, declares that every woman whose husband shall abandon her "shall be deemed a free trader . . . so far as to be competent to contract and be contracted with," etc., and this section has been held to be constitutional. Hall v. Walker, 118 N.C. 377.

These privileges, as well as those found in the Code, 178, necessarily imply responsibilities and liabilities in certain cases.

Finley v. Saunders, 98 N.C. 462, was an action for possession of land against a wife whose husband had abandoned her, and it was held upon good authorities that the action could be maintained against her alone.

Heath v. Morgan, 117 N.C. 504, was an action for personal property unlawfully withheld by the wife whose husband had abandoned her and could not be served with process, and it was held that the nonjoinder of the husband was no defense. If a wife, then, whose husband has abandoned her, be sued in tort, she may set up a counterclaim for any damages arising out of the same "transaction" disclosed in the complaint, and if her damages exceed those of the complaint she is entitled to a judgment for the excess. Code, 244; Bitting v. Thaxton, 72 N.C. 541;McKinnon v. Morrison, 104 N.C. 354.

If, then, she can recover damages by way of counterclaim, which is only her cross-action, we fail to see why she cannot do so by direct action.

Upon these cases, and upon reason, we think she is entitled to (11) prosecute her claim in this action.

Error.