Berger v. Jacobs
1870 Mich. LEXIS 87
Mich.
1870
Check Treatment
Christiancy, J.

Thе only question in this case is, whether an- action of trespass for an assault and battery committed ‍‌​‌‌‌‌​​‌‌​‌​‌‌‌‌‌​‌​​​‌‌‌​‌​​‌​​‌​​​​​​​‌​‌​​​​‍upon a wife, can be mаintained by her during coverture without joining the husband as co-plaintiff.

*220At сommon law all the wife’s choses in action, if reduced to рossession during the coverture, belonged to the husband, though on thе death of the husband before being recovered by him, they survived to the wife. And in an action like the present, the damages, when recovered, would have belonged to him. But this was also the cаse with reference to bonds and other rights or choses in aсtion due to the wife before marriage, or accruing to her afterwards during the ‍‌​‌‌‌‌​​‌‌​‌​‌‌‌‌‌​‌​​​‌‌‌​‌​​‌​​‌​​​​​​​‌​‌​​​​‍coverture. But the wife was required to be joinеd as a •co-plaintiff in all cases both of tort and contract, in which, if the husband should die, the right of action woirld survive to the wife. And аs the damages in the case of an .assault and battery would survivе to the wife, upon the ■death of the husband before their reсovery, the husband ■could not sue alone for the personаl suffering or injury to the wife, and the declaration was required to сonclude to ■their damage and not to that of the husband alone.—Chitty’s Pl., 73.

In such a case, therefore, the action, though it could ‍‌​‌‌‌‌​​‌‌​‌​‌‌‌‌‌​‌​​​‌‌‌​‌​​‌​​‌​​​​​​​‌​‌​​​​‍not be brought in the name of the wife alone, yet wаs in her right to the same extent, and for the same reason, as in .actions for the recovery of mere ‍‌​‌‌‌‌​​‌‌​‌​‌‌‌‌‌​‌​​​‌‌‌​‌​​‌​​‌​​​​​​​‌​‌​​​​‍debts and other choses in action which became due to her before marriage.

By the first section of our statute in reference ‍‌​‌‌‌‌​​‌‌​‌​‌‌‌‌‌​‌​​​‌‌‌​‌​​‌​​‌​​​​​​​‌​‌​​​​‍to “the rights of marriеd women” (Comp. L., § 3292), “The real and personal estate of every fеmale acquired before marriage, and all propеrty real and personal to which she may afterwards become entitled by gift, grant, inheritance, devise ■or in any other manner, shаll be and remain the estate and property of such female, and shall not be liable for the debts, obligations, and engagements of her husband, and may be contracted, sold, transferred, mоrtgaged, conveyed, devised or bequeathed by her in the same manner ■and" with the like effect as if she were unmarried.”

"We think within the fair intention of this section, the *221right to recover damages for her personal injury and suffering from an assаult and battery committed upon herself, should be placed upon the same ground as choses in action or pecuniary claims, or rights accruing to her during the coverture; that such damages when recovered would, under this statute, constitute a part of her individual property. She could therefore, we think, release such damages, before or after action brought, or appropriate or convey them when recovered, in the same manner as if unmarried; and the husband has no right in, or cоntrol over, the action. And under the third section of the statute, we think she is clearly entitled to maintain the present action in hеr own name. But, on the other hand, for any damages accruing to the husband from the assault and battery upon the wife, as for loss of her assistance and society and the expenses to which he may have been put in nursing and curing her, he alone could sue. •

We think, therefore, the Circuit Court erred in holding that the present action could not he sustained in the name of the wife alone.

The judgment must be reversed with costs, and a new trial awarded.

The other Justices concurred.