
    BALL v. BURLESON.
    
      N. Y. Supreme Court, Seventh District, Monroe Special Term ;
    
    
      June, 1889.
    4. Parties; husband and wife.] An action against a physician for damages sustained by reason of negligent professional treatment of a married woman, is properly brought in the joint names of husband and wife.
    2. The same.] The repealing act of 1880 (L. 1880, c. 245, § 1, subds. 86, 88) repealed that part of the married woman’s act which authorized her to maintain actions in her own name for injuries to her person and character, and the substituted provisions of the Code of Civil Procedure (§§ 450, 1206, 1906) do not, except in the special cases therein provided for, sanction such separate action.'
    Demurrer to complaint.
    The complaint alleged that the plaintiffs, Harry C. Ball and Bose E. Ball, were husband and wife; that 'the defendant, being a physician and surgeon, was employed by plaintiffs as such to set and heal the leg of the plaintiff wife, which was broken, and for that purpose defendant undertook to set said leg and to attend and care for-said wife. That defendant so negligently and unskillfully conducted himself in setting or attempting to set said leg, and in attempting to heal the same, that the said leg was thereby disabled, deformed and crippled, and said wife is and will hereafter be unable to use the same; and by reason of defendant’s said negligence she was made sick and suffered great pain and inconvenience, to plaintiffs’ damage five thousand dollars.
    Defendant demurred to this complaint, and for grounds of said demurrer stated as follows :
    1. That there is a misjoinder of parties plaintiff in this-action.
    2. That the plaintiff, Harry C. Ball, is improperly joined as a plaintiff with the plaintiff, Rose E. Ball, having no interest in the cause of action alleged in the complaint.
    3. That the cause of action stated in the complaint is one belonging to and affecting the separate property of the plaintiff, Rose E. Ball, and belonging to her solely, and it is not necessary or proper to join the plaintiff, her husband, Harry 0. Ball, in said action as a party plaintiff.
    4. That no joint cause of action in favor of the plaintiffs and against the defendant is set up or alleged in the said complaint.
    5. That the facts alleged in said complaint do not constitute a cause of action in favor of said plaintiffs jointly against the defendant.
    6. That two causes of action have been and are improperly united in one count in said complaint.
    7. That no cause of action is stated in said complaint in favor of the plaintiff, Harry 0. Ball, against the defendant.
    8. That the complaint does not state facts sufficient to constitute a cause of action against the defendant in favor of the plaintiff, Harry 0. Ball, or in favor of the said Harry C. Ball, joined as a plaintiff with said Rose E. Ball.
    
      9. That the facts stated in the complaint do not show that the plaintiff, Harry 0. Ball, has any interest in the cause ■of action set up in the complaint, and for that reason is, improperly joined as a party plaintiff.
    10. That the facts alleged in the complaint do not show that the cause of action belongs to both of the plaintiffs.
    11. The cause of action set up in the complaint is the ■separate property of and belongs solely to the plaintiff, Hose E. Ball, and the said Harry C. Ball is not a necessary or proper party plaintiff, and is improperly joined as a plaintiff with his wife, the said Bose E. Ball.
    12. That the said Bose E. Ball, plaintiff, is improperly joined with her husband as a party plaintiff for the cause of action alleged in the complaint, having no joint or common interest in or ownership thereof.
    
      J. F. Parkhurst, for plaintiffs.
    
      John F. Little, for defendant.
   Davy, J.

The principal question raised by this demurrer •is, whether the action was properly brought by the husband and wife jointly to recover damages for personal injuries to the wife.

Under the common law the husband was a necessary party, for the reason that the legal control of interest in the claim was in him and the recovery was for his benefit if he chose to reduce it to possession during his life time. The marriage operated as an absolute gift in law to the husband ■of the goods and chattels and personal property of the wife. The husband and wife were treated as one person, as having but one will between them, and that will was moved and controlled by the husband. She could not make any contract or maintain an action in her individual name. Her husband must be a party in every action which she prosecuted or defended, and when a judgment was recovered against them an execution could be issued against the property of both (Schuler on Husband and Wife, §§ 141, 142; Bertles v. Nunan, 92 N. Y. 152; Mann v. Marsh, 21 How. Pr. 372, 375).

This was the general rule of the common law in this State before the first enactment in 1848, known as The Married Woman’s Act,” which removed the disability of married women so far as to enable them to acquire, own and dispose of property the same as if unmarried; but that act did not give her the power to sue or be sued without joining her husband. Then followed the Acts of 1860, chapter 90, as amended by chapter 172 of the Laws of 1862, which ■authorized and permitted a married woman to sue and be sued in all matters relating to her separate property and to bring and maintain an action in her own name for damages ■against any person or body corporate for any injury to her person or character the same as if she were a feme sole. In no case prior to the statute of 1860, could a wife, in this State, sue alone for injuries to her person or character.

At common law it was often necessary, however, to bring separate actions for recovery of the entire damage resulting from an injury to the person of the wife, in one of which the husband alone was plaintiff and in the other the wife wras joined. The husband, for example, was alone ■entitled to the loss of service of his wife and for the expenses incurred in doctors and nurses in curing her of injuries. But when damages were sought to be recovered for bodily pain suffered by the wife from such injuries to her person, she had to be joined with her husband as plaintiff in the action. By the provisions of that act the rule of the common law, so far as it related to actions for direct injuries to the wife, was changed, so that the right to damages in such cases was transferred from the husband to the wife. And in cases arising between 1860 and 1880, the courts held that a married woman might sue alone to recover damages for injuries to her person or character the same as if she were unmarried. The legislature in 1880, chapter 245, section 1, =subds. 36 and 38 of the Laws of 1880, repealed that part of the married woman’s act authorizing her to bring and maintain actions in her own name for injuries to her person and¡ character, and I have not been able to find that any substitute was provided, except to a limited extent by section 1906 of the Code of Civil Procedure, which relates to actions for slander, imputing unchastity to a woman, and provides that if the plaintiff is married the damages recovered are her-separate property. So that, with this exception, the law concerning actions for direct injuries to the person or character of a married woman is left as it was prior to 1860.

It is claimed, however, by the learned counsel for the defendant, that section 450 of the Code of Civil Procedure, taken in connection with section 1206, changes the-rule. Section 450 reads : “ In an action or special proceedings a married woman appears, prosecutes, or defends, alone- or joined with other parties, as if she were single, it is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property.” The second sentence of the above section was-added in lSYO.

It is a rule of law well settled that statutes changing the-common law must be strictly construed, and the common-law must be held no further abrogated than the clear import, of the language used, in the statute absolutely requires. The common law relations, therefore, between husband and wife are swept away only by the express enactment of thelegislatnre. Statutes are not presumed to make any alterations in the common law further than the act expressly requires. The courts in this State have held, in construing that provision of the married woman’s act, authorizing her to bring and maintain an action in her own name for damages to her person, that the services of the wife in the discharge of her domestic duties still belong to the husband,, and in rendering such services she still bears to him the common law relation, and if injured or disabled from performing such services for her husband, the loss is his and not hers. But when she is carrying on a separate business, or is laboring for another person, the value of her services belongs to her and not to her husband (Filer v. N. Y. C. & H. R. R. Co., 49 N. Y. 47; Coleman v. Burr et al., 93 Id 17, 28).

In the case of Fitzgerald v. Quann, 109 N. Y. 441, 447, Peckham, J., in referring to section 450 of the Code of Civil Procedure, says: This section, as it stood before the amendment, certainly rendered it unnecessary to join the husband with the wife in cases affecting her separate property, and unless the effect of the amendment be to state these cases where such joining is unnecessary, leaving it necessary in all other cases, it is difficult, if not impossible, to give any sense or meaning to the amendment. In our opinion such is and was intended to be the effect of the amendment, and unless in cases affecting her separate property, a married woman should be sued with her husband ” (Mangam et al. v. Peck, 111 N. Y. 401).

The section of the Code referred to does not create a right of property, but simply provides for the enforcement of such rights as already exist. It does not give a married woman the property right of a feme sole, but merely enables her to enforce those property rights which she has as a married woman in the same way as if she was unmarried. Section 450 of the Code has not transferred this or any other property of the husband to the wife. This position is. made still clearer by the fact that where anyone slanders, a woman by imputing unchastity, the legislature made an, express provision that in case the plaintiff was married, the-damages recovered shall be her separate property.

The common law did the wife such great wrong that, as. civilization advanced, it became so repugnant to common, sense and justice that a wonderful revolution in public opin- - ion took place in favor of the rights of married women.. Mississippi, in 1839, was the pioneer State which passed the-first American statute on the subject. This was followed by the Acts of 1846 and 1848 in this State, and since that; period statutes have been passed in nearly' every State in the; Union conferring upon the wife the power to acquire and hold in her own right, property, both real and personal.

While the acts in different States are by no means uniform in their provisions, yet they all have for their object the accomplishment of the same general purpose,—the protection of the married woman in her property rights from the control of an unfortunate and profligate husband and his creditors. The simplicity and good sense of these laws has had a powerful influence in moulding public opinion, not only in this country but in England, in their favor, so much so that in 1870 the English Parliament was forced by public opinion to break the unyielding common law fetters which had impeded the liberties and rights of married women in that country for centuries, and to pass an act pertaining to the powers and rights of married women, very ■■similar to ours. It is to be regretted that our own State, ■after having been one of the pioneers in legislating in the interes't of the married women, should have, either intention■ally or by mistake, repealed that provision of the Married Woman’s Act which gave her the sole right to sue for injuries to her person or character. The legislature in this respect has taken a long step backwards into the old fossil foot-prints of feudalism. It has restored that discrimination between husband and wife that originated in the dark ages of the feudal system, when the husband maintained his authority by force and when married women were treated by their husbands more like slaves than companions.

In the most enlightened and polished ages of Roman jurisprudence the husband and wife were regarded as distinct persons and capable of holding distinct and separate estates. The wife was comparatively free from all civil disabilities ; she was.alone responsible for her own debts ; she was competent to sue and be sued on her own contracts.

The repeal of that portion of chapter 172, Laws of 1862, which I have referred to, is retroactive, and in my judgment it does not commend itself to the people of the State. I trust that this error may be remedied in time by subsequent legislation, but until that is done we must acquiesce in the law as it now exists. The statute law is the will of the legislature and not the courts, and courts can only interpret the intent of the legislature by the language expressed in the act.

I have, therefore, come to the conclusion that the husband in this case was a proper party to the action, and the -defendant’s demurrer must be overruled and judgment thereon ordered for the plaintiff, with leave, however, to the defendant, upon the payment of ten dollars costs, to withdraw his demurrer and answer the complaint.  