Van Arnam v. Ayers , 67 Barb. 544 ( 1877 )

Hardin, J.

. This case is novel. The learned counsel have cited no authority which reveals such a state of facts; and I have not been able to find a case like it in the books.

If the action was by the husband, against the defendant, for having persuaded, advised and induced the wife ro leave and abandon her husband, there would be found cases to support it. (Addison on Torts, rol. 1, p. 9, and cases cited. Winsmore v. Greenhank, Willes' Rep., 577, decided in 1745. Hutcheson v. Peck, 5 John., 196. Barnes v. Allen, 1 Keyes, 390, 394. Hermance v. James, 32 How., 143; S. C., 47 Barb., 124. Bennett v. Smith, 21 Barb., 439.)

The husband, at common law, was entitled to the services of the wife, to the comfort of her society, and any wrongful interference gave him a right of action. He might have an action for criminal conversation, for abduction, for enticing or harboring her. She was not supposed capable of consent, in either of those cases; and the husband’s right of recovery rested, very much, upon the same ground of the master’s right to recover for wrongs done to his servant.

But such was not the rule in respect to the wife. She had no such cause of action. Nor did the child have any similar right of action for a like wrong done to a parent or master. Sir Fro. Blackstone states the rule thus: “We may observe that in these relative injuries notice is only taken of the wrong done to the superior of the parties related by the breach and dissolution of either the relation itself, or at least the advantage arising therefrom ; while the loss of the inferior by such injuries is totally unregarded. One reason for which may be thus ; that the inferior hath no kind of property in the company, care or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she hath no separate interest in anything, during her coverture. The child hath no property in his father or guardian, as they have in him for the sake of giving him education and nurture.” (2 Black. Com., Chit. ed., p. 115; marg. p. 142, 143.)

In Ball v. Bullard, (52 Barb., 143,) Potter, J., says: “ By the theory of the common law from time whereof the memory of man runneth not to the contrary, husband and wife are one person; that is, the very being or legal existence of the woman is suspended, or at least incorporated and consolidated into that of the husband, during the marriage. For this reason it was that this union of persons, or rather of merging the separate legal existence of the wife into that of the husband, made it necessary that the name of the husband should be used in all actions in which the rights of the wife were brought into question in the courts.”

The plaintiff does not, by the facts stated in the complaint, appear (1,) to have had any property in the services or society of her husband ; (2,) to have suffered any injury to her person ; or (3,) to her character, and therefore she does not state a cause of action.

I am aware that our statutes in relation to married women, of 1848, 1849 and 1862, and section 114 of the Code, have conferred upon married women the right to maintain actions, separate and alone, in cases where the wife could not, at common law, maintain actions. The Code (§ 14) provides: “When a married woman is a party, her husband must be joined with her, except that 1. When the action concerns her separate property, she may sue alone. 2. When the action is between herself and her husband, she may sue or be sued alone.”

Under this section of the Code it was necessary that she should join her husband as a party, in all cases except the two enumerated ones, viz.: when the action concerned her separate property, or was between herself and her husband.

In 1862 the legislature, by section 7 of chapter 172, provided that “any married woman may bring and maintain an action in her own name, for damages, against any person * * * for any injury to her person or character.” (Mann v. Marsh, 35 Barb., 68. Ball v. Bullard, 52 id., 144.) The facts set out in the plaintiff’s complaint do not bring this case under either of the four cases enumerated in section 114 of the Code and section 7 of the act of 1862, and therefore these provisions of law cannot be held to give her any right to maintain an action for the matters therein alleged. These statutes giving married women the right to maintain separate actions remove disabilities only so far as a reasonable construction of their language requires.

The common law remains, except as changed by the legislation referred to ; and if the wife is interested in a cause of action not provided for by such legislation, she must still join her husband as a party. (1 Chit. Plead., p. 28, marg.)

[Herkimer Special Term, July, 1877.

It may be that the innovating spirit of modern legislation will still further abrogate the principles of the common law, in respect to the marital relations and rights of husband and wife; but until such legislation occurs, it must be held that the facts set out in the plaintiff’s complaint are not sufficient to constitute a cause of action ; and also that the plaintiff cannot maintain, alone, an action by reason thereof.

The demurrer to the plaintiff’s complaint is therefore sustained, with leave to the plaintiff to amend upon payment of costs.

So ordered.

Hardin, Justice.]