
    Case 17 — PETITION ORDINARY
    April 4.
    Maysville & Lexington R. R. Co. v. Herrick.
    APPEAL FROM BOURBON CIROUIT COURT.
    1. The wife of a non-resident, residing in this state, may bring and defend actions as an unmarried woman.
    Sec. 10, art. 2, chap. 52, General Statutes, applies to a married woman wbo came to this state before the General Statutes took effect, as well as to one “ who shall come to this commonwealth without her husband, he residing elsewhere,” etc.
    2. A REFUSAL TO GRANT A POSTPONEMENT OF THE TRIAL was not an abuse of judicial discretion, when it was admitted the absent witness would prove all the material facts set out in the affidavit.
    3. The defendant had no right to a postponement of the trial to enable him to procure the attendance of a person not in his employ to assist his counsel in the preparation and management of his defense.
    4. To AUTHORIZE THE RECOVERY OF PUNITIVE DAMAGES, under the act of March 10, 1854, it is necessary to show a state of case — willful neglect — quad criminal in its nature.
    5. An ACTION TO RECOVER DAMAGES FOR A PERSONAL INJURY, NOT resulting in death, is a common law proceeding, and punitive damages are recoverable, if the proof shows that the company failed to use such diligence in keeping its railroad bridge in repair, as careless and inattentive persons usually exercise in the preservation of the same, or of business of like character.
    6. The absence oe slight care in the management of a railroad train, or in keeping a railroad track in repair is gross negligence, and to enable a passenger to recover punitive damages for a personal injury, it is not necessary to show the absence of all care, or reckless indifference to the safety of passengers, or intentional misconduct on the part of the agents and officers of the company.
    7. A verdict eor $5,000 damages for an injury which manifestly resulted in great physical and mental suffering, and which most probably involves the permanent reduction of the strength of the broken leg, is not so excessive as to make it appear that the jury were influenced in their action by passion or prejudice.
    CUNNINGHAM & TURNEY and W. H. WADSWORTH eor APPELLANT.
    1. The court below erred in not postponing the trial on the affidavits filed.
    2. The appellee, a married woman, who came to this state in 1870 from Ohio, without her husband, he having before that time resided in this state, could not sue alone. Her status and the marital rights of her husband were fixed by the Revised Statutes in force in 1870, providing that “A married woman who shall come to this from another state or country without her husband, he never having resided here, may contract, buy and sell, sue and be sued, as an unmarried woman,” etc. (Revised Statutes, sec. 8, art. 2, chap. 47.)
    Sec. 10, art. 2, chap. 52, General Statutes, providing that “a married woman who shall come to this commonwealth, without her husband, he residing elsewhere, may acquire property, contract, and bring and defend actions as an unmarried woman,” etc., does not apply to one who came into the state before or was residing in this state when the General Statutes took effect, December 1, 1873.
    “ Who shall come ” in said sec. 10, applies alone to future cases where married women come, or have come to this state since the General Statutes took effect. The act adopting the General Statutes, sec. 3, art, 1, p. 138, provides that their adoption shall-not affect “any right, established, accrued or accruing,” etc.
    3. Since the adoption of the General Statutes, a married woman can in no case act, contract, or sue as a feme sole, unless enabled by the decree of a court of competent jurisdiction. Any other construction would give to the wives of aliens privileges not enjoyed by citizens of the state.
    So far as married women, abandoned by their husbands while residing in this state, are concerned, the question is closed against further argument by tbe decisions of this court. (Uhrig v. Horstman & Sons, 8 Busb, 172; Hannon v. Madden, 10 Bush, 664.)
    Sec. 10, art. 2, chap. 52 of the General Statutes, is a complete departure from sec. 8, art. 2, chap. 47 of the Revised Statutes, and intended to confer upon the wives of aliens, coming into the state without their husbands, they “residing elsewhere,” the right to appeal to the proper court, and thus be permitted by the proper decree to act as unmarried women, as provided in secs. 5 and 6 of the same article in reference to wives generally. The Revised Statutes, in the section quoted, intended to adopt what the revisers understood to be tbe rule of the common law, that the wife of an alien, who had never resided in the kingdom, coming into England without him, might act as a. feme sole.
    
    Some of the English judges erroneously held, that by the common law, if the husband was an alien, and had never resided in the country, the wife might be sued as a feme sole, as in Kay v. Duchess of Pienne, 3 Camp. 123; and Shelton v. Busnach, 4 Moo. & Scott, 678. But the twelve judges of England decided otherwise, and restored the rules of the common law in Marshall v. Rutton, 8 T. R. 547.
    Sec. 6 of art. 2, chap. 52, General Statutes, applies to all wives who have a residence in this state, and the wives of aliens are included by the terms of the section. Nevertheless section 10 deems it necessary to provide that wives of aliens may also act separately, to remove any doubt on the subject which might grow out of the fact of their alienage.
    4. As the appellee’s husband was a non-resident, a bond for costs should have been given before the commencement of the action.
    BRENT & McMILLAN roe appellee.
    1. Appellee “ came to this commonwealth without her husband, he residing elsewhere,” in 1870, and thus brought herself within the provisions of sec. 10, art. 2, chap. 52, General Statutes, authorizing her to “acquire property, contract, and bring and defend actions as an unmarried woman,” and therefore it was not necessary that she should join her husband as plaintiff with her, or give bond for costs on account of his non-residence.
    The construction of the w'ords “who shall come” etc., in said section 10, contended for by counsel for appellant, would make it not only operate as a repeal of sec. 8, art. 2, chap. 47, Revised Statutes, but also to deprive all married women of the privilege of bringing actions, who were authorized to do so by said sec. 8. (Broaddus v. Broaddus, 10 Bush, 299; Bailey v. Commonwealth, 11 Bush, 688; Sec. 17, chap. 21, General Statutes; Tilson v. Henry, 17 Vermont, 479; People v. Utica Ins. Co., 15 J. R. 358.)
    2. As to the true rule as to exemplary damages, see Wallace v. The Mayor, 2 Hilton, 440; and as to gross negligence, see 7 Bush, 235.
   CHIEF JUSTICE LINDSAY

delivered the opinion oe the court.

The appellee, Nannie J. Herrick, is a married woman. Her husband was at one time a citizen of this state, but removed to .Ohio some years since. In 1870 Mrs. Herrick returnéd to Kentucky, and has since that time been an inhabitant of Paris, Bourbon County. Her husband has continued to reside in Ohio. Mrs. Herrick instituted this action in her own name, and did not make her husband a party plaintiff or defendant; and the first question to be determined is, whether under these circumstances she can maintain it.

Section 10, article 2, chapter 52, General Statutes, provides that a married woman who shall come to this commonwealth without her husband, he residing elsewhere, may acquire property, contract, and bring and defend actions as an unmarried woman. But her husband may be restored to his marital rights by a judgment of the circuit court of the county of her residence, on petition in equity to which she is a party, either plaintiff or defendant. The court shall provide for the payment of the wife’s indebtedness out of her property, including ■choses in action, and may make equitable orders in regard to the remainder, and pending actions.”

Mrs. Herrick is within the description of persons intended to be benefited by this statute, unless she is excluded because she came to Kentucky prior to the adoption of the General .Statutes. To exclude her because the statute speaks only of married women who shall come,” etc., would be to adhere to the letter of the law and to disregard its spirit. It was intended :as an enabling act, for the benefit of a class of persons laboring under legal disabilities, and not enjoying the protection incident to the state of marriage, because of the absence from the •commonwealth of their husbands; and a person clearly within this class will not be denied the benefit of a remedial statute by grammatical construction, at the expense of the manifest legislative intent. This section is wholly disconnected from, and in no degree dependent upon, section 6, which makes provision for courts of equity, empowering married women to acquire property and trade as femes sole, and does not fall within the rule announced in the cases of Uhrig v. Horstman & Sons (8 Bush, 172) and Hannon v. Madden (10 Bush, 664).

Mrs. Herrick is not attempting here to exercise the right of a feme sole. She is merely exercising the personal right secured to all women, married or unmarried, of prosecuting an action to which she is a necessary party, and in which she has a direct personal interest; and she has omitted to make her husband a party, not because she claims the right in general to act as a feme sole, but because the statute permits all married women, circumstanced as she is, to sue in their own names, and to make contracts and acquire property, subject to the marital rights of their husbands, should they see proper to assert them.

The court below did not err in refusing to sustain the appellant’s plea in abatement.

The refusal to grant a postponement of the trial was not an abuse of judicial discretion. It was admitted the absent witness would prove all the material facts set out in the two affidavits, and the appellant had no right to a postponement to enable it to procure the attendance of a person not in its employ to assist its counsel in the preparation and management of its defense.

Instructions Nos. 1, 3, and 4, given on motion of appellee, seem in no wise objectionable, and the definition of gross neglect is far more favorable to appellant than it had the right to demand; and instruction No. 4 obviated the necessity of giving either of Nos. 1, 2, 3, and 4, asked by appellant, even if they had been unobjectionable. But they bach and all confuse gross neglect with willful or intentional wrong, and are in that respect erroneous. The term willful neglect ” was introduced into the jurisprudence of this state by the act of March 10, 1854, and it has always been in the construction of that act that this court has held it necessary to show a state of case quasi criminal in its nature, to authorize the recovery of punitive damages. This is a common law proceeding to recover damages for a personal injury not resulting in death, and punitive damages were recoverable, if the proof showed that the company failed to use such diligence in keeping its railroad bridge in repair as careless and inattentive persons usually exercise in the prosecution of the same, or of business of like character. The absence of slight care in the management of a railroad train, or in keeping a railroad track in repair, is gross negligence; and to enable a passenger to recover punitive damages, in a case like this, it is not necessary to show the absence of all care, or “ reckless indifference to the safety of ; . passengers,” or “intentional misconduct” on the part of the agents and officers of the company.

The other instructions asked by the appellant all related to the legal disability of the appellee, and were, for reasons already given, properly refused. The instructions given by the court, of its own motion, were of the most favorable character for the appellant. There was no necessity to instruct, that notice to the employees of the predecessor of the appellant, in the control and management of the road, was not notice to it. No such proposition was insisted on or even presented by the appellee.

We can not say the verdict for $5,000, in the way of damages, for an injury which manifestly resulted in great physical and mental suffering, and which most probably involves the permanent reduction of the strength of the broken leg, is so excessive as to make it appear that the jury were influenced in their action by passion or prejudice.

Judgment affirmed.  