Libby v. Berry

SyjioNds, J. The opinion in Abbott v. Abbott, 67 Maine, 304, is decisive against the right of the plaintiff to recover, unless the change in the law introduced by the later act of 1876, c. 112, is such as to sustain the action. But the amendment of 1876 has been held by the court, in Hobbs v. Hobbs, 70 Maine, 381, to relate toncases whereby the very assumption the husband may be a party with the wife or not, at her election. The design is to protect her from all marital interference in suits commenced by the wife alone or jointly with her husband, and to prevent his maintaining alone any action respecting his -wife’s property.” Smith v. Gorman, 41 Maine, 405, 408; Crowther v. Crowther, 55 Maine, 359. It is clear that in the case at bar the husband could not be a party plaintiff with the wife, for he was the principal and the defendant the agent in procuring the wrong to be done. According to the construction already given to the act of 1876, it does not so far modify the common law as to authorize a civil action by the wife against the husband to recover damages for an assault, nor against those who act with the husband and under his direction in doing such a wrong. It only authorizes her to maintain alone such actions as previously could be sustained when brought by the husband alone or by the husband and wife jointly. It enlarges not her right of action, but her sole right of action. It does not enable her to maintain suits which could not [289] have been maintained before, but to bring in her own name those which before must have been brought in the husband’s name, either alone or as a party plaintiff with her. The reasoning in Abbott v. Abbott, is also conclusive upon the point that if such right of action does not exist during coverture it does not arise upon divorce. From the competency of married women to make legal contracts, and from the full recognition of their separate right of property, certain special instances have arisen in which after divorce actions of assumpsit by them against their former husbands have been sustained, as in Webster v. Webster, 58 Maine, 139; Carlton v. Carlton, 72 Maine, 115. See also, Blake v. Blake, 64 Maine, 177. But nothing in those cases indicates such right of action in tort. Plaintiff nonsuit. Appleton, C. J., Walton, Daneorth, Virgin and Peters, JJ., concurred.