4 Ohio Law. Abs. 732 | Ohio Ct. App. | 1925
Mayme Leonardi brought this action in the Lake Common Pleas against B. C. Leonardi, her husband to recover for personal injuries received by her through the alleged negligent operation of his automobile. B. C. Leonardi filed a demurrer stating that by the Common Law rule the wife could not recover for injuries caused by the husband’s negligence. Mrs. Leonardi not wishing to plead further, the action was dismissed.
Upon error, it was not contended by her that she could maintain her action at common law; but that the rule has been abrogated by statute calling particulor attention to 11245 GC. which is in part: “A married woman shall sue and be sued as if she were unmarried.”
Error was prosecuted, and the Court of Appeals held:
1. Sec. 11245 GC. does not purport to give any new grounds of recovery for- the wife but only to allow the wife to maintain an action in her own name which prior to the Code must have been brought in the joint name of husband ann wife.
2. The Code refers to the property relations of husband and wife and does not enlarge the right of either against the other for personal injuries.
3. Nowhere has the legislature of this state changed the common law principal preventing the husband from recovering for a tort of the wife committed upon him, non-liabilty remaining as it always was.
4. And in the absence of direct legislation it is not to be presumed that her common law disability to recover from the husband for an injury caused by bis negligence would be removed without giving the husband the same legal right.
5. Therefore until the Legislature does so express its intentions the wife cannot maintain such an action against the husband.
Judgment affirmed.
