This case presents a single question, which is involved in the construction of the statutes governing the District of Columbia. That question is, Under those statutes may a wife bring an action to recover damages for an assault and battery upon her person by the husband?
The declaration of the plaintiff is in the ordinary form, and in seven counts charges divers assaults upon her person by her husband, the defendant, for which the wife seeks to recover damages in the sum of $70,000. An issue of law being made by demurrer to the defendant's pleas, the Supreme Court of the District of Columbia held that such action would not lie under the statute. Upon writ of error to the Court of Appeals of the District of Columbia the judgment of the Supreme Court was affirmed. 31 App. D.C. 557.
At the common law the husband and wife were regarded as one. The legal existence of the wife during coverture was merged in that of the husband, and, generally speaking, the wife was incapable of making contracts, of acquiring
It is unnecessary to review these statutes in detail. Their obvious purpose is, in some respects, to treat the wife as a femme sole, and to a large extent to alter the common law theory of the unity of husband and wife. These statutes, passed in pursuance of the general policy of emancipation of the wife from the husband's control, differ in terms and are to be construed with a view to effectuate the legislative purpose which led to their enactment.
It is insisted that the Code of the District of Columbia has gone so far in the direction of modifying the common law relation of husband and wife as to give to her an action against him for torts committed by him upon her person or property. The answer to this contention depends upon a construction of § 1155 of the District of Columbia Code, 31 Stat. 1189, 1374, March 3, 1901. That section provides:
"SEC. 1155. Power of Wife to Trade and Sue and be Sued. — Married women shall have power to engage in any business, and to contract, whether engaged in business or not, and to sue separately upon their contracts, and also
In construing a statute the courts are to have in mind the old law and the change intended to be effected by the passage of the new. Reading this section, it is apparent that its purposes, among others, were to enable a married woman to engage in business and to make contracts free from the intervention or control of the husband, and to maintain actions separately for the recovery, security and protection of her property. At the common law, with certain exceptions not necessary to notice in this connection, the wife could not maintain an action at law except she be joined by her husband. Barber v. Barber, 21 How. 582, 589. For injuries suffered by the wife in her person or property, such as would give rise to a cause of action in favor of a femme sole, a suit could be instituted only in the joint name of herself and husband. 1 Cooley on Torts, 3d edition, 472, and cases cited in the note.
By this District of Columbia statute the common law was changed, and, in view of the additional rights conferred upon married women in § 1155 and other sections of the Code, she is given the right to sue separately for
This construction we think is obvious from a reading of the statute in the light of the purpose sought to be accomplished. It gives a reasonable effect to the terms used, and accomplishes, as we believe, the legislative intent, which is the primary object of all construction of statutes.
It is suggested that the liberal construction insisted for in behalf of the defendant in error in this case might well be given, in view of the legislative intent to provide remedies for grievous wrongs to the wife; and an instance is suggested in the wrong to a wife rendered unable to follow the avocation of a seamstress by a cruel assault which might destroy the use of hand or arm; and the justice is suggested of giving a remedy to an artist who might be maimed and suffer great pecuniary damages as the result of injuries inflicted by a brutal husband.
Apart from the consideration that the perpetration of such atrocious wrongs affords adequate grounds for relief under the statutes of divorce and alimony, this construction would at the same time open the doors of the courts to accusations of all sorts of one spouse against the other,
An examination of this class of legislation will show that it has gone much further in the direction of giving rights to the wife in the management and control of her separate property than it has in giving rights of action directly against the husband. In no act called to our attention has the right of the wife been carried to the extent of opening the courts to complaints of the character of the one here involved.
It must be presumed that the legislators who enacted this statute were familiar with the long-established policy of the common law, and were not unmindful of the radical changes in the policy of centuries which such legislation as is here suggested would bring about. Conceding it to be within the power of the legislature to make this alteration in the law, if it saw fit to do so, nevertheless such radical and far-reaching changes should only be wrought by language so clear and plain as to be unmistakable evidence of the legislative intention. Had it been the legislative purpose not only to permit the wife to bring suits free from her husband's participation and control, but to bring actions against him also for injuries to person or property as though they were strangers, thus emphasizing and publishing differences which otherwise might not be serious, it would have been easy to have expressed that intent in terms of irresistible clearness.
Some of the cases of that character are: Bandfield v. Bandfield, 117 Michigan, 80; Abbott v. Abbott, 67 Maine, 304; Schultz v. Schultz, 89 N.Y. 644; Freethy v. Freethy, 42 Barbour, 641; Peters v. Peters, 42 Iowa, 182.
Nor is the wife left without remedy for such wrongs. She may resort to the criminal courts, which, it is to be presumed, will inflict punishment commensurate with the offense committed. She may sue for divorce or separation and for alimony. The court in protecting her rights and awarding relief in such cases may consider, and, so far as possible, redress her wrongs and protect her rights.
She may resort to the chancery court for the protection of her separate property rights. 21 How. 582, 590. Whether the wife alone may now bring actions against the husband to protect her separate property, such as are cognizable in a suit in equity when brought through the medium of a next friend (21 How., supra), is a question not made or decided in this case.
We do not believe it was the intention of Congress, in the enactment of the District of Columbia Code, to revolutionize the law governing the relation of husband and wife as between themselves. We think the construction we have given the statute is in harmony with its language and is the only one consistent with its purpose.
The judgment of the Court of Appeals of the District of Columbia will be
MR. JUSTICE HARLAN, with whom concur MR. JUSTICE HOLMES and MR. JUSTICE HUGHES, dissenting.
This is an action by a wife against her husband to recover damages for assault and battery. The declaration
The defendant filed two pleas — the first that he was not guilty, the second that, at the time of the causes of action mentioned, the plaintiff and defendant were husband and wife and living together as such.
The plaintiff demurred to the second plea, and the demurrer was overruled. She stood by the demurrer, and the action was dismissed.
The action is based upon §§ 1151 and 1155 of the Code of the District, which are as follows:
"SEC. 1151. All the property, real, personal, and mixed, belonging to a woman at the time of her marriage, and all such property which she may acquire or receive after her marriage from any person whomsoever, by purchase, gift, grant, devise, bequest, descent, in the course of distribution, by her own skill, labor, or personal exertions, or as proceeds of a judgment at law or decree in equity, or in any other manner, shall be her own property as absolutely as if she were unmarried, and shall be protected from the debts of the husband and shall not in any way be liable for the payment thereof: Provided, That no acquisition of property passing to the wife from the husband after coverture shall be valid if the same has been made or granted to her in prejudice of the rights of his subsisting creditors.
"SEC. 1155. Married women shall have power to engage in any business, and to contract, whether engaged in business or not, and to sue separately upon their contracts, and also to sue separately for the recovery, security or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried; contracts may also be made with them, and they may
The court below held that these provisions did not authorize an action for tort committed by the husband against the wife.
In my opinion these statutory provisions, properly construed, embrace such a case as the present one. If the words used by Congress lead to such a result, and if, as suggested, that result be undesirable on grounds of public policy, it is not within the functions of the court to ward off the dangers feared or the evils threatened simply by a judicial construction that will defeat the plainly-expressed will of the legislative department. With the mere policy, expediency or justice of legislation the courts, in our system of government, have no rightful concern. Their duty is only to declare what the law is, not what, in their judgment, it ought to be — leaving the responsibility for legislation where it exclusively belongs, that is, with the legislative department, so long as it keeps within constitutional limits. Now, there is not here, as I think, any room whatever for mere construction — so explicit are the words of Congress. Let us follow the clauses of the statute in their order. The statute enables the married woman to take, as her own, property of any kind, no matter how acquired by her, as well as the avails of
I repeat that with the policy, wisdom or justice of the legislation in question this court can have no rightful concern. It must take the law as it has been established by competent legislative authority. It cannot, in any legal sense, make law, but only declare what the law is, as established by competent authority.
My brethren feel constrained to say that the present case illustrates the attempt, often made, to effect radical changes in the common law by mere construction. On the contrary, the judgment just rendered will have, as I think, the effect to defeat the clearly expressed will of
I dissent from the opinion and judgment of the court, and am authorized to say that MR. JUSTICE HOLMES and MR. JUSTICE HUGHES concur in this dissent.