Berger v. Jacobs

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

*220At common law all the wife’s choses in action, if reduced to possession during the coverture, belonged to the husband, though on the 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 case with reference to bonds and other rights or choses in action due to the wife before marriage, or accruing to her afterwards during the coverture. But the wife was required to be joined 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 as the damages in the case of an .assault and battery would survive to the wife, upon the ■death of the husband before their recovery, the husband ■could not sue alone for the personal suffering or injury to the wife, and the declaration was required to conclude 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 was 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 married women” (Comp. L., § 3292), “The real and personal estate of every female acquired before marriage, and all property real and personal to which she may afterwards become entitled by gift, grant, inheritance, devise ■or in any other manner, shall 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, mortgaged, 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 assault 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 control over, the action. And under the third section of the statute, we think she is clearly entitled to maintain the present action in her 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.