Lewis v. City of Atlanta , 77 Ga. 756 ( 1886 )

Hall, Justice.

1. There is but one ground of error alleged in this record on which the plaintiff, in the argument of her counsel here, confidently relies for a reversal of the judgment, and that is contained in the second ground of the motion for a new ■trial, and is as follows: Because the court charged that if the plaintiff was a married woman at the time of the injury, she could not recover for expenses incurred by her in consequence of the injury, unless actually paid by her, because she would nbt be legally liable therefor.

The husband was not joined with the wife in this action, which was brought for personal injuries to her, -in consequence of obstructions in the streets of Atlanta, made, by private parties, who had accumulated materials for paving the same in front of their residences, and who had left these materials during the night without the accustomed signal to warn foot-passengers along the street of their presence, or without surrounding them with barriers to protect persons going on the street from encountering them. There was proof that expense was incurred for medicine, nursing and the attendance of physicians engaged to heal and cure the plaintiff of her wounds and bruises. The amounts charged by the physicians were also in evidence, .but there was no testimony going to show that the plaintiff was living separate from her husband; that she was a free-trader under our law; that she had any separate property ; or that she personally undertook to pay these expenses, or in any manner bound herself to do so.

Notwithstanding all the property of the wife at the time of the marriage remains her separate property, and that all she inherits, or which is given to or acquired by her during the coverture, belongs to her and is not liable for the payment of any debt, default or contract of the husband (code, §1754), yet this does not relieve him of the obligation to support and maintain her, or divest her of the power, as his presumed agent, of purchasing necessaries suitable to her condition and habits of life, and which are to be appropriated to the use of herself and the family. Id. §1757. Even where she has separate property, the law is careful in protecting it from obligations assumed on the husband’s account, or from sale to pay his debts, or from pledging it as security for the performance of his or any other person’s undertaking. Code, §§1785,1783, and citations under each.

On the other hand, these provisions do not deprive him of the right to recover compensation for torts to her person or reputation; it is only when she is living separate from him that she may sue for such torts and recover for her own use. Id. §1755. In like manner, when separated ñom him, she may enforce contracts made in reference to her own acquisitions. Id. .As a general rule, she can neither sue nor be sued without joining him in the action, except in cases where the action concerns her separate property, or where it is between herself and her husband, or where she is living separate and apart from her husband. Id. §1774. In case the wife had separate property, or was authorized to’ recover for her own use and in her name compensation for injuries to her person which occurred while she was living with her husband, it would be going, as we think, quite too far to imply, from such circumstances as exist here, an undertaking to pay for the nec-_ essariés furnished in relieving her of the consequences of this wrong to her person. We know of no case that goes to that extent; besides, it may admit of serious question, whether this recovery by her would bar the husband’s right to maintain his action to recover compensation for this tort; he is certainly entitled to the avails of her ordinary labor and to her society. There is nothing in the evidence to show that he either acquiesced in or consented to the proceeding; indeed, his rights in the premises seem to have been ignored, and he appears to have been regarded as a mere nonentity.

2. The other question of law in this case is made by the charge given and that refused, as set forth in the 1st and 3d grounds of the motion for a new trial, and relates to the duly of defendant, when the paving of the sidewalk is being done by the owners of the adjoining lots, to superintend the work, and to see to it that the obstruction in the street, caused by the collection of material used in the work, is properly lighted at night and is surrounded by sufficient barriers to protect persons passing along the way from encountering the obstruction. The charge as given, we think, was correct as applied to the facts in this case, and that requested, being opposed to it, was properly refused. The case of the Mayor, etc. of Savannah vs. Donnelly, 71 Ga. 258, 259, is distinguished from this by the fact that special permission had to be obtained to make the improvement, which the party was compelled to complete within a specified time. The city was thus notified of the obstruction and should have taken steps to remedy it. No such facts exist here, and there is. nothing to show that the defendant had any notice of the alleged violation ofthe ordinance by owners of adjacent lots in laying the sidewalk in question. Assuming that the plaintiff had the right to maintain this action in her own name, and if there had been no conflict in the evidence upon the subject of her own negligence in contributing to the injury she sustained, which was certainly very serious, then we might have concluded that the damages found were inadequate; but with these mitigating facts, we could not reach that conclusion without unwarrantably interfering with the province of the jury, and so we must order the judgment affirmed.