Coulter v. Hermitage Cotton Mills

March 29, 1919. The opinion of the Court was delivered by Plaintiff, a married woman, brought this action against defendant for damages for an assault and battery, alleged to have been committed upon her by a representative of defendant in the course of his employment. She did not join her husband as a party plaintiff, nor did she allege that she was a married woman. The answer was a general denial.

At the trial, plaintiff introduced testimony tending to prove the assault and battery alleged, and incidentally it was brought out that she was a married woman. At the conclusion of the testimony, defendant moved for a nonsuit, on the ground that she could not maintain the action without joining her husband. The Court granted the motion, and plaintiff appealed.

We think the Court was in error. In the case of Messervyv. Messervy, 82 S.C. 559, 64 S.E. 753, it was decided that a married woman could maintain an action for damages for maliciously enticing her husband away from her, without joining the husband as a party. While the circumstances of the two cases are not precisely alike, the right of the wife to maintain an action in tort for injury to her person without joining her husband was affirmed in that case, on the ground that it was "a chose in action," in the broadest sense of those words, which belongs exclusively to her, and, therefore, she has the right to sue for such injury without joining her husband. Her right of action is separate and distinct from that which her husband may maintain, in such a case, for the loss of her services and other damages resulting to him by reason of her injury — just as a parent and minor child may maintain separate actions for an injury to the child.

Judgment reversed.

MESSRS. JUSTICES FRASER and GAGE concur.

MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS did not sit.