52 Barb. 141 | N.Y. Sup. Ct. | 1868
The first two exceptions, in effect, raise the same question of law, to wit, may a married woman bring an action, in her own name, against a wrongdoer for a wrong committed upon her person, without joining her husband with her as a party? I am clearly of the opinion that since the acts of the legislature of this state, of 1860, chapter 90, and of 1862, chapter 172, she may bring such an action in her own name. Indeed, such is the express language of these statutes^ to wit: “ Any married woman may bring and maintain an action in her own name, for damages, against any person, * * for any injury to. her person, * * the same as if she were sole, and the money received on the settlement of any such action, or recovered upon a judgment, shall be
Before this radical change in the provisions of the statute, by the theory of the old common law, from time whereof the memory of man runneth not to the contrary, husband and wife are but 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. Hor this, only, by virtue of the marriage alone ; all her goods and personal chattels, (and chattels real,) became absolutely those of the husband. But the husband had no interest in, or title to, damages occasioned by an injury done to the person of his wife, though it is also true that money collected on a judgment for such an injury, became the property of the husband, by the common law, as it existed before the acts of 1848, 1849, 1860 and 1862. If the wife died, “pendente lite,” the action abated; the cause of action did not survive to the husband; nor could he have recovered if he had brought an action in his own name alone, for there is no
There was, therefore, no ground for making the husband a party to the action, except that of the old, and now abrogated and exploded idea of the common law, of the merging the separate existence of the wife into that of the husband, and of that theoretic unity of two persons in one, which made it necessary that in all actions affecting the interests of the wife, the husband must be joined with her as a party. The statutes above referred to, having wrought the sensible reforms so befitting to the spirit of justice; to the advancing wants of the age; to the progressive intelligence and improved circumstances of a free people; must have given to them all sensible and practical force and effect. In their plain letter and obvious spirit, they agree; they need no interpretation; the wayfaring man cannot err who reads them. It was clearly unnecessary to unite the husband in the action; and the right of action to the husband is not impaired by the statutes of 1860 and, 1862 ; nor is the cause of action to the wife affected thereby.
The only remaining objection raised to the recovery, by the plaintiff is the statute of limitations set up in the second answer of the defendant, to wit, that the cause of action, stated in the said complaint, did not accrue within six years before the commencement of this action. The cause of action accrued in December, 1857. The action was commenced 9th March, 1867, about nine years and three months afterwards. The plaintiff, at the time of the injury complained of, was, and still is, a married woman. By the 91st section of the Code, subdivision 5, injuries to
This provision existed before the passage of the statutes of 1860 and 1862. It is easy enough to give construction to this provision of the statute, as applicable to this case, but for the statutes last mentioned. -It was, that even the disability of marriage should not extend the time within which to bring the action more than five years beyond the six years mentioned in section 91. In other words, if the disability of marriage continued, the action must be brought within eleven years; and if the disability ceased during the eleven years, the action must be brought within one year after it so ceased.
Inasmuch as the action could he brought within the six years, if brought in conjunction with the husband, even though the disability of marriage existed, this was certainly no very unreasonable limitation. If, then, the statutes of 1860 and 1862 create no cessation of this disability, the action is still brought within the eleven years allowed by section 101.
"What, then, was this previous disability ? Hot that she could not bring the action, in conjunction with her husband, to recover the damages; that she could do; but that, by reason of her being married, she could not bring an action in her own name, to recover and hold the
Judgment for the defendant.
James, Bosekrans, Potter and Bockes, Justices.]