Carmichael v. Carmichael, 25254

25254 | Ga. Ct. App. | Jul 9, 1936

Broyles, C. J.

1. At common law a husband and wife, in legal fiction, are one person; the common law is of force in Georgia, except where changed by a statute of the State; under the common law neither could maintain against the other a civil action based on a tort; and that holding of the common law has not been abrogated by any statute of this State. Heyman v. Heyman, 19 Ga. App. 634 (92 S.E. 25" court="Ga. Ct. App." date_filed="1917-04-03" href="https://app.midpage.ai/document/heyman-v-heyman-5609484?utm_source=webapp" opinion_id="5609484">92 S. E. 25); Central Ry. Co. v. Cheney, 20 Ga. App. 393 (93 S.E. 42" court="Ga. Ct. App." date_filed="1917-06-27" href="https://app.midpage.ai/document/central-of-georgia-railway-co-v-cheney-5609820?utm_source=webapp" opinion_id="5609820">93 S. E. 42) ; Code, § 53-501; 65 C. J. 73, § 119; Eddleman v. Eddleman, 53 Ga. App. 368 (186 S.E. 368" court="N.C." date_filed="1936-06-15" href="https://app.midpage.ai/document/state-v--kinyon-3642823?utm_source=webapp" opinion_id="3642823">186 S. E. 368) ; Thompson v. Thompson, 218 U. S. 611 (31 Sup. Ct. 111, 54 L. ed. 1180).

2. Under the common law all rights of action by a wife for antenuptial wrongs committed by her husband are extinguished by their subsequent marriage; and this is true though she and her husband may be living separately and apart from each other when her suit is brought. Henneger v. Lomas, 145 Ind. 287 (44 N. E. 462, 32 L. R. A. 848). This principle of the common law, not having been abrogated by any statute of Georgia, is still of force in this State.

3. In the instant ease Mrs. Rosa Carmichael brought suit against her husband, W. W. Carmichael, for personal injuries. Her petition shows that at the time of the infliction of the injuries both she and Carmichael were unmarried; that subsequently they married each other and lived together for about one year, when they separated; that they were living apart when her suit was brought, but no divorce had been obtained, and the relation of husband and wife existed between them at that time. Under the rulings set forth in the preceding notes, the court properly sustained the general demurrer and dismissed the action. The cases cited in the brief of counsel for the plaintiff are distinguished by their particular facts from this case, and are not in conflict with the ruling here made. Judgment affirmed.

Decided July 9, 1936. IP. B. Mebane, for plaintiff. Mundy & Mundy, for defendant. MacIntyre amd Querry, JJ., concur.