
    CALEB SNASHALL ET UX. vs. THE METROPOLITAN RAILROAD COMPANY.
    Pleading ; Injuries to Wipe ; Action por ; How Brought ; International Law.
    1. An action to recover damages for injuries to the wife should be brought in the names of the husband and wife.
    2. The Married Woman’s Act does not give the wife capacity to sue in her own name for personal injuries or to make a contract releasing the wrongdoer from liability for such injuries.
    3. The principles of private international law are a part of the common law in this District; therefore, if by the law of any State, certain movables belong to a wife, domiciled there, as absolutely as if she were unmarried, that law must be applied here to any movable actually here. 4. But this principle does not apply to a right of action for an injury to the person, and a release by a married woman domiciled elsewhere of her right of action therefor is a nullity here.
    At Law.
    No. 29,082.
    Decided December 15, 1890.
    Justice Hagner, Cox and James sitting.
    Appeal from a judgment on demurrer to a plea in an action to recover damages for injuries to the wife.
    
      Reversed.
    
    The pacts are stated in the opinion.
    Messrs. J. J. Darlington and W. H. Sholes for plaintiffs.
    The only point raised by the demurrer was the effect of the Wisconsin law in this jurisdiction, the plea setting out and relying upon the law of Wisconsin, which expressly gives to a married woman control over actions for'injury to her person. This ground, however, was not seriously maintained by the defendant at the hearing, and may be briefly disposed of here, as it was by the justice below. Justice Story, in his Conflict of Laws, after stating at sections 65,66, that the civil jurists hold the capacity or incapacity of the domicile to extend everywhere, at section 241 et seq., shows that the American authorities are to the contrary. The court, in Campbell vs. Crampton, 18 Blatchford, 150, expressly state that the English and American authorities differ from the civil law on this point, and that “as to the capacity of parties to enter into contracts, it must be accepted as a general rule that the law of the place where the. contract is made must be the test.” The civil law doctrine was held in the early Louisiana cases, but latterly, where the direct question came before them, the court, in Andrews vs. His Creditors, 11 Louisiana Reports, 464, held that contracts entered into in other States, as it relates to their validity, and the capacity of the contracting parties, are to be tried in Louisiana by the lex loci celebrati contractus. Halley vs. Ball, 66 Ill., 250; Naylor vs. Baltzell, Taney, 61; Wharton on Conflict of Laws, Sec. 118 ; 2 Kent, 453; 2 Parsons on Contracts, 578.
    And the Supreme' Court of the United States, in Scudder vs. Union National Bank, 1 Otto, 406, says: “The law of the expected place of performance, should there be a difference, yields to the lex fori and the lex loci contractus.”
    
    Prior to the Married Woman’s Act we were controlled by the common law, which declared all contracts of married women void, and gave the husband absolute control over the personal property of the wife (Schneider vs. Garland, 1 Mackey, 358), including her choses in action, which he could reduce to possession or alienate before possession for a valuable consideration. Reeves on Domestic Relations, citing 2 Atk., 207, 417; 1 Bron. Cha., 44. She could not sue alone, as, in that case, no one could be made liable for the costs of the suit (Kimbro vs. First National Bank, 1 MacA., 65), and was only joined with her husband where she was considered the meritorious cause of action. 1 Chitty’s Pleading, 30; Candy vs. Smith, 6 Mackey, 307.
    To change these features of the common law, Congress passed the so-called Married Woman’s Act April 10, 1869, contained in Sections 727-730, inclusive, of the Revised Statutes of the District of Columbia.
    
      This ,statute, being in derogation of the common law, must be strictly construed.
    “Section 727,” says this court, in Hitchcock vs. Richold, 5 Mackey, 421, “ deals simply with the completeness and absoluteness to her right to property acquired by her in ways already known to the common law.” But there was no way known to the common law by which a married woman could acquire property in a right of action for injuries to her person. Until judgment there is no acquisition of property, or property itself, in an action in tort for injury to the person.
    The right to sue for a tort to the person is not a chose in possession, and it is legally clear that it is not a chose in action. Blackstone says, Vol. 1, page 395: “ Choses in action can only arise out of contracts,” and Bouvier defines a chose in action as “a right to receive or recover a debt, or money, or damages for breach of contract, or for a tort connected with contract, but which cannot be enforced without action,” thus excluding rights of action founded merely in tort.
    This difference is clearly pointed out in the case of Gibson vs. Gibson, 43 Wis., 35.
    This decision, however, is only in 'line with the common law on this point, as laid down by Blackstone, Vol. 1, page 436, in the following language: But there is also a species of property to which a man has not any claim or title whatsoever till after suit commenced and judgment obtained in a court of law; where the right and the remedy do not follow each other, as in common cases, but accrue at one and the same time, and where, before judgment had, no man- can say that he has any absolute property, either in possession or in action. Of this nature are damages given to a man for injuries to his person.”
    In the case at bar, therefore, the mere fact of having suffered a personal tort not constituting property at all, and still less a “separate estate” in the wife, and the existence of an actual, already acquired, separate estate in the wife being, under the decisions of this court, (Schneider vs. Garland, supra; Rich vs. Hyatt, 3 MacA., 552,) an essential prerequisite to her power to contract, it follows, necessarily, that the alleged covenant or release is wholly invalid here.
    It is true that in some of the States the contrary doctrine appears to have been followed in cases cited by the defendant below, and yet an analysis of the decisions, and a consideration of the statutes in those States, wall show that these cases are, for the most part, not applicable here.
    Thus, the case of Ramsey vs. Lake, 55 How. Prac., 339, was a New York case, decided under Chap. 219, Sec. 3, of the Act of 1862, which allowed a married woman to “bring and maintain an action in her own-name for injuries to her person the same as if she were sole, and provided that the money recovered should be her sole and separate property;” and so in the case of Blair vs. C. & A. RR., 89 Mo., 383, the separate release of a married woman for injuries to her person Was held valid under the Act of 1875, R. S., Sec. 3296, which provides that she should owm the wages of her separate labor, and have any property growing out of the violation of her personal rights. Two of the cases relied upon by the defendant, namely, C., B. & Q. RR. Co. vs. Dunn, 52 Ill., 263, and Burger vs. Jacobs, 21 Mich., 215, appear to have been decided under statutory provisions not differing materially from our own. They are, however, opposed by the decisions of other courts equally respectable and authoritative, are not in harmony with the uniform practice in this jurisdiction, in -which husband and wife have always continued to be joined as plaintiffs in such actions, are in opposition to the legal principles and authorities above set forth, and rest upon no other legal principles or rules of construction to be found in any of the authorities. The considerations upon which the courts reached the conclusions arrived at in those cases, as wall appear upon an examination of them, are such as belong rather to legislative than to judicial deliberations, and point rather to the expediency of ail extension of the Statute to the case before the court, than to any ascertainment of its object and extent-by the application of the established rules and principles of legal construction.
    The question was directly presented in the case of Gibson vs. Gibson 43, Wis., 27, where a careful examination and judicial consideration of it will be found: Of Burger vs. Jacobs, the court say: “The Statute of Michigan in regard to the rights of married women is substantially like our own. But we think the construction which we have given our statute is the correct one, and that it is not in accord with either the spirit or intent of that enactment to hold that the right to recover ‘damages for personal injuries to the wife should stand upon the same ground as choses in action or a pecuniary claim. We, therefore, cannot adopt the view which the Supreme Court of Michigan has taken of the effect of this legislation. See, also, Neese vs. Fon du Lac, 48 Wis., 323.
    The decision in the latter case of Shannon vs. City of Madison, 57 Wis., 276, cited by the° defendant, was based upon a later statute, which provided, in terms, that the action might be brought by the married woman in her own name as if she were sole; and the court, in its opinion, expressly reiterates the doctrine of its former decisions upon the question under the older statute, which is the same in substance as ours.
    Her “ sole and separate property,” under section 727, is “ property, real or personal, belonging to her at the time of marriage, or acquired during marriage in any other way than by gift or conveyance from her husband.”
    The whole question, therefore, resolves itself into this: Whether,in advance of any judgment,or even suit therefor, ■a married woman acquires property by being slandered, assaulted, or otherwise becoming the subject of a tort.
    Mr. Geo. F. Appleby for defendant:
    
      Where a married woman, domiciled in a State whose laws permit her to contract as a feme sole, and require her, in her own name, to bring an action for the recovery of damages for injuries to her person, is compelled, in order to obtain proper service of the writ, to bring an action to recover damages for such injuries in another State where the defendant resides, and the lex fori permits an action to be commenced and maintained by a married woman in her own name, the comity between the States, provided the cause of action be not against the public policy of the "State of the forum, will enable such married woman to bringan action in her own name for damages to her person, inasmuch as such an action is transitory and the 'venue is immaterial, aud whether or not the ownership of the judgment be governed by the lex domicilii, if she can bring and maintain an action in her own name, thus having full and absolute control of such action, she can release such action before judgment, and, ergo, the right of such action before its commencement. Dennick vs. Railroad Co., 103 U. S., 18; McKenna vs. Fish, 1 How., 248; Bar, International Private Law, Sec. 107, n; Westlake, Secs. 59, 112.
    Woolsey, Sec. 71, 164, who says: “The capacity of a person to acquire or to part with property is to be decided according to the law of the domicile.” Hill vs. Pine River Bank, 45 N. H., 309; Shanahan vs. Madison, 57 Wis., 276; Ramsey vs. Lake, 55 How. Pr., 339; Ball vs. Bullard, 52 Barb., 143, 144; Musselman vs. Galligher, 32 Iowa, 386, 388 ; Story's Conflict of Laws, Secs. 141, 159, 185, 186, 187, 423 ; Huber’s De Confl. Leg. 1. 1, tit. 3, Sec. 2, 538; Bank of Augusta vs. Earle, 13 Petters, 591.
    In Chicago, Burlington & Quincy Railroad vs. Dunn, 52 Ill., 265, Chief Justice Breese delivering the opinion of the court, after showing that a right of action accruing by reason of personal injuries received b}'- a married woman from the negligence of a railroad company, is classified as personal property by law commentators, says: “We are satisfied this right of action is property, included in the words all property;’ it was the separate property of the wife, acquired during coverture, and from a source other tiian her husband, and she alone can control it.”
    To the same effect are Burger vs. Jacobs, 21 Mich., 215 ; Musselman vs. Galligher, 32 Iowa, 388.
    In the case at bar, plaintiffs are -domiciled in the State of Wisconsin, and plaintiffs' claim that plaintiff feme was injured by the defendant. As to the law of Wisconsin, see Chap. 90, Laws of 1881. By the act of the legislature of the State of Wisconsin, approved March 17,1881, and published March 19, 1881, it is enacted that “any married woman may bring and maintain an action in her own name for any injury to her person or character, the same as if she were sole, and any judgment recorded in such action shall be the separate property and estate of such married -woman, provided that nothing herein contained shall affect the right of the husband to maintain a separate action for any such injuries as now provided by law.”
    In the District of Columbia, the statute is broader than in Illinois, Michigan or Iowa, and it is not confined to married women who are residents of the District. It provides as follows: “ In the District, the right of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband, nor be liable for his debts.” Sec. 727 Revised Statutes of the United States relating to the District of Columbia. Sec. 729 gives the right to any married woman to contract and sue in her own name. Ergo, a married woman domiciled in Wisconsin may sue in her own name in the District of Columbia, in any matter having relation to her sole and separate property, no matter where the same may be situate; and certainly, if the ownership of .a judgment obtained in any such action devolves in case of her death upon her representatives, it is a futile formality to join the husband in any such action. It cannot be doubted that in case of the death of a feme covert domiciled in Wisconsin, the succession h> her personal estate in the District of Columbia would be determined by the law of Wisconsin. Inasmuch as comity of suit involves comity of contract (13 Peters, 591, supra),, such married woman from Wisconsin can release the action or right of action.
   Mr. Justice James

delivered the opinion of the Court:

This is an action by husband and wife to recover damages for injuries done to the wife while a passenger on the defendant’s road, by means of the negligence of the defendant. The defendant pleaded, in bar to the action, as follows: “That at the date in the declaration mentioned of the supposed grievances laid to its charge, the plaintiffs were citizens of the State of Wisconsin, and were there resident and domiciled and have since continued to be and still are there resident and domiciled. That by the law of the said State of Wisconsin, at the date aforesaid and since and still prevailing, the plaintiff, Emeline Snashall, wife, as aforesaid, of Caleb Snashall, herein suing was and is capacitated to contract in respect of her separate property and estate and to bring and maintain an action in her own name for any injury to her person the same as if she were sole, and by said law any judgment in such action recovered is her separate property and estate. That on the date aforesaid, the said Emeline “ was absent from her home, to wit, from the city of Evansville, in the counly of Rock, in the State aforesaid, whence she had recently journeyed with the intent thither soon to return, and was present in the city of Washington, District of Columbia, and that thence, shortly thereafter, she returned to her said home; that after the date aforesaid, and before the commencement of this suit, the said 'Emeline Snashall, having the faculty of a feme sole to deal with her right to a compensation as damages for an injury to her person, entered into a covenant with this defendant, whereby it is released from any actions or demands against it by reason of the premises; and the consideration of the said covenant, under her hand and seal, was accepted by the said Emeline in full satisfaction and discharge of the grievances in the said declaration mentioned,” etc.

To this plea the plaintiff demurred, stating one of his grounds as follows: “That, in advance of judgment, the.' laws of Wisconsin referred to in the plea are regulative of the remedy merely, and create no separate estate in the wife.” The demurrer was overruled, and judgment was for the defendant for costs. The case is now here on appeal.

While the plea sets up a capacity of the wife as belonging to her by the law of her domicile, it was also insisted at the argument that she had, even by the law of this District, a capacity to make the alleged contract.

Whether a married woman has such control over an action for injury to her person in this District, depends, of course, on her having a sole right of action in such cases, and that depends upon the construction of the Act of .1869, known as the Married Woman’s Act, now embodied in sections 727-730 of the Revised Statutes. It has been the practice, ever since that statute was passed, to bring such actions in the names of the husband and wife, and it has never been doubted by this court that the common law on that subject was still in force. But, as the question was seriously argued in this case, we have re-examined it, and have now to say that we are satisfied that the practice has been right.

A statute which deals only with the property of the wife, and with contracts “ having relation” to it, is not to be construed as intending to disturb the personal relations of husband and wife; and this common law right of the husband to sue, together with his wife,-for redress of a wrong done to her by slander, or by assault and battery, or by negligence, is based, not upon any technical considerations, but upon his personal relation to her as her protector, and upon his ancient family dominion. Some of the States have thought fit to abolish this vestige of the marital relation, but they have done so by giving the wife a sole right of action in express terms. Until we have a similar-expression of the legislative will, we shall not supply the want of it by judicial legislation under the much abused pretext of “the spirit of the act.” Indeed, we perceive no temptation to use such power if we had it. It is familiar to all courts that an action for defamation is liable to be met by proof of the truth of the charge; and it is only lately that an action for injuries done to a woman by negligence was defended in this court on the ground that it was only a mishap caused by her own intoxication. Can anything be a matter of deeper concern to a husband or a family than the question whether an action shall be brought at all, when it is known that the good name of the wife and mother will be irreparably damaged in the contest? It would hardly seem to be selfish or tyrannical that the man who is bound to provide her a home should have the right to decide whether it shall be made still more wretched by a revelation of its sorrows, in the effort to obtain redress. And even if there were no such risks, there would be a risk of weakening the husband’s concern for the wife’s safety by setting her to fight her own battles and telling him that he is legally a stranger to them. Certainly a court should not bring on this risk by a strained construction of a statute.

As we find, then, that a married woman does not derive from our statute the capacity to sue in her own name for personal injuries, or capacity to make any contract relating to them, she is without any such capacity here, unless she can derive it from the law of her domicile. We proceed to that question.

The principles of private international law are, of course, a part of the common law of this District, and, according to those principles, the law of the domicile of a person claiming to be owner of movable things is recognized and applied, so far as rights of proprietorship are concerned, by the law of the place where such movables may actually be. Inasmuch as an owner’s right to -remove such things from their actual situs to his domicile is recognized, they are necessarily treated, while here and not yet removed, as being in all other respects as much under his control as if he had first removed them and then exercised such control. This principle is ordinarily expressed by a somewhat unnecessary fiction, namely, that they are, in contemplation of law, whatever the actual fact may be, with the person of the owner, and therefore at his domicile and under its law. According to this principle, if, by the law of Wisconsin, certain movables belong to a wife, domiciled there, in the same absolute manner as if she were unmarried, that law must be applied here to any movables actually here. She has the right, separately from her husband, to remove them lienee to her domicile, to exercise over them while here every kind of proprietary control, and to bring or release actions for injuries done to them here. In a word, we must apply to all movables, to everything which may be removed by its owner from its actual situs to his domicile, and so far as relates to ownership, the foreign law which establishes his ownership.

Does this principle apply to a right of action for an injury to the person done in this District? Does it require us to regard a right of action for such a tort as being a movable, and therefore governed, as to its ownership, by the law of Wisconsin? .We think it does not, and that there is no analogy between the two subjects.

In the first place, a right of action for a personal injury has never been considered property within the meaning of private international law- — -and it is with that branch of the common law that we have to deal in -this case — certainly not as property in the sense employed in speaking of movables. We are aware that the Supreme Court of Michigan, in Berger vs. Jacobs, 21 Mich., 215, and Leonard vs. Pope, 27 Id., 145, and the Supreme Court of Illinois, in Chicago, Burlington, &c., RR. vs. Dunn, 52 Ill., 264, held that such a right of action was property within the intention of statutes relating to the rights of married women ; but, even if we could concur in the views there expressed we should still hold that it would not follow that, in applying the-international law rule of domicile, a right of action for a personal injury was property within the meaning of that rule. It is interesting to observe that it has been held in the very State whose law is said to have given the status of property to a right of action for a personal tort, that no-such status can be imputed in the absence of an express provision of the statute. In Gibson vs. Gibson, 43 Wis., 23, the Michigan decisions above referred to were distinctly disapproved.

But, as we have said, it is not material whether these local statutes intended to treat such rights of action as property. The material question is, whether they are property within the intent of the rule of international law which declares that the ownership and control of personal property shall be according to the law of the owner’s domicile.

It is settled by the authorities which treat of domicile that this rule applies only to “ movables.” Now, if a local statute should declare something to be property, in the same sense that actual movables are property, clearly we are not required to concede that the rule of international law is thereby altered, and is extended to a subject to which it had not before extended. International rules are not affected by the separate action of one of the parties to them. Moreover, if this rule of private international law is part of the common law of this District, the local law of another country would, in order to bring under it any new subject, have to operate as an amendment of the law of this District-.

Whatever may have been the intent, then, of the statute of Wisconsin which is set up in the plea, that statute does not operate on the principle of the international rule of domicile. As to its actual intent, we think that it did not propose, to convert the mere right of action into separate-property, but merely gave a sole remedy to the wife, and then provided that any judgment obtained by that remedy should be her separate property. But whether-it intended the one or the other is immaterial; it only had the effect to-give the wife control over the separate right furnished by itself, and had no effect whatever upon the right given by the law of this District to the husband as well as to the wife. She could release her separate Wisconsin remedy,, and its fruits, but only the husband could release the right given to him by our law to sue in the name and behalf of himself and his wife. So far as any action in this District,, for injuries occurring in this District, is concerned, her release was a nullity. She cannot interfere with what, by the law which operates on the subject here, does not belong to her, and will never belong to her, except in the contingency of her surviving her husband before judgment.

The demurrer is sustained, and the cause is remanded for further proceedings.  