Anderson v. Anderson, 74 Ky. 327

Anderson v. Anderson

74 Ky. 327 | Ky. Ct. App. | 1875

JUDGE LINDSAY

delivered the opinion oe the court.

John B. McCrary, acting as the next friend for Henrietta and Charles Anderson, who were husband and wife, and at the time both under the age of twenty-one years, caused this action to be instituted against Peter H. Anderson, to recover damages for an alleged battery upon the person of the female plaintiff, Henrietta, committed during her coverture. Upon preliminary proceedings it turned out that McCrary had used the name of the husband, Charles Anderson, without authority, and finally said Charles appeared in court and repudiated the action of McCrary, and upon his motion his name was stricken from the petition as one of the plaintiffs. Appellants then moved the court to allow them to prosecute the action in the name of the wife alone. This motion was overruled. They then asked to be permitted'to make the husband a party defendant. The court refused the permission asked, and then *329dismissed the petition. This judgment we are asked to reverse.

Section 49 of the Civil Code of Practice provides that—

“ Where a married' woman is a party her husband must be joined with her, except that when the action concerns her separate property she may sue alone; and where the action is between herself and her husband, she may sue or be sued alone.”

Section 51 provides that—

“ Where a husband, being a father, has deserted his family, the wife, being a mother, may prosecute or defend in his name any action which he might have.prosecuted or defended, and shall have the same powers and rights therein as he might have had.”

The female plaintiff in this ease does not show that she is entitled to prosecute the action, under either of the exceptions- set out in the two sections quoted. The action does not concern her separate estate. It is not between herself and husband, nor are their rights and interests necessarily so far antagonistic as to render it proper to make the husband a defendant.

While it does appear that the husband and wife are living separate and apart, and whilst it might be inferred that the husband had deserted her, or rather compelled her to leave his house and home, it does not appear either that he is a father or that she is a mother.

This case differs essentially from that of Hardin v. Gerard (10 Bush, 259). There the husband had sold and conveyed, with covenants of general warranty, the wife’s real estate. In an action by her to recover the possession of such estate, the husband’s interest was to support his covenant of warranty. It was therefore antagonistic to that of the wife, and as he refused to join as plaintiff he was properly made a defendant. Besides, he could not be allowed, by selling her land and then refusing to join with her in an action to recover it, to defeat *330that provision of the Revised Statutes which limited his interest in his wife’s real estate to the use thereof, with power to rent it for not more than three years and receive the rent. There is no such limitation upon the right of the husband to damages growing out of torts to the person or reputation of his wife. He has the power to release such damages before they are paid, and if collected during his life he may, by reducing them to possession, make them his absolute property.

It seems that, with the exception named in section 51 of the Civil Code, our statutes have- continued in force the common-law rule that “where an injury is committed to the wife during coverture, by battery, slander, etc., the wife can not sue alone in any case, and the husband must join if the action be brought for the personal suffering or injury to the wife.” (Chitty’s Pleading, side page 74, vol. 1.)

Considering the age of Charles Anderson, this is not a case in which a next friend should be allowed to compel him to prosecute an action contrary to his wishes.

There being no error in the proceedings, the judgment is affirmed. ■