19 Ohio App. 302 | Ohio Ct. App. | 1924
This action was instituted by Esther Gr. Finn, as plaintiff in the common pleas court, against Julius R. Finn, to recover damages for personal injuries sustained by reason of the
In argument, counsel state that “this case presents only one question for the consideration of the court, namely: Can a wife sue her husband in tort for injuries sustained by his wrongful act?” While that is a correct statement, of the identical question to be determined in this action, the principle involved is somewhat broader in scope. The question to be determined is whether either a wife or a husband may sue the other for injuries resulting from the negligence of the one sued. It is conceded that a.t common law such an action could not be maintained. The theory of the common law was that the identity of. the wife was merged in that of the husband, and that because of the identity of person in husband and wife neither could maintain an action at law against the other. It is claimed, however, on behalf of the plaintiff in error, that the legislative enactments of
The theory of the common law- that by marriage the legal existence of the wife was. merged in that of the husband, so that she was incapable of contracting, acquiring and disposing of property without the consent of the husband, of suing and being sued separately, has been abolished by modern legislation. By progressive legislation the common-law limitations on the rights of married women have from time to time been removed, so that in Ohio the rights of married women stand on an equality with that of married men. Their rights and obligations are mutual, except that the duty of supporting himself, his wife and minor children out of his property, or by his labor, rests primarily upon the husband. (Section 7997, General Code.) Their property rights are entirely separate, neither having any right in the property of the other, except such as is provided by Section 7997, General Code, and the right of dower, and the right to remain in the mansion house after the death of either, as provided by law. (Section 7998, General Code.)
Husband and wife are enabled by Section 7999, General Code, to contract with each other, the same as if they were unmarried. The statutes of this state will be searched in vain for any provision expressly permitting the husband or wdfe to sue each other for injuries to the person or property of either. That the wife may sue in her own name and right upon any cause of action which she may
“Indeed we doubt that any member of that body had in contemplation such a result when he voted for the statutes which protect the individual rights of married people. The legislature was contemplating the expressed purpose of the statutes, and that only. They were not at that time considering crimes and criminal procedure; and surely they
It must be presumed that the legislators knew the policy of the common law, as established by centuries of judicial decisions. Had it been the intention of the Legislature to permit husband and wife to sue each other for injuries to the person or property caused by the other, it surely would have so declared by express and clear legislative enactment. To make such a radical change in the policy of the common law by judicial construction would be equivalent to such legislation. While the common-law unity of person in the husband and wife no longer prevails, nevertheless the marriage ceremony does constitute a new relationship whereby the parties assume a different responsibility toward each other and toward society. As husband and wife, there/ is at least a unity of interest in the establishment of a home. The home
We are aware of the fact that the courts of different states are not in accord upon this proposition, but the great weight of authority is opposed to the position taken by plaintiff in error in this case. The subject was dismissed by the ¡Supreme Court of the United States in Thompson v. Thompson, 218 U. S., 611. That court reached the conclusion that the law of the District of Columbia, conferring upon the wife the right to sue separately for torts committed against her, did not authorize an action* against her husband for damages arising from an assault and battery. In the course of the opinion rendered in that case, at page 619, Mr. Justice Day said:
“Nor is the wife left without remedy for such wrongs. She may resort to the criminal courts,
In addition to the cases cited in that opinion we call attention to Strom v. Strom, 98 Minn., 427, and Woltman v. Woltman, 153 Minn., 217. The cases bearing upon the question are collected and discussed in an extended note in 6 A. L. R., at page 1038.
From the considerations above set forth we find that there was no error in the judgment rendered in the Court of Common Pleas, and the judgment will be affirmed.
Judgment affirmed.