#### M. L. YOUNG v. J. W. NEWSOME and SARAH NEWSOME.

(Filed 10 November, 1920.)

1. Husband and Wife — Married Women — Wife’s Torts — Husband’s Liability — Statutes.

Tbe rule of tbe common law tbat made tbe husband liable for tbe torts of bis wife, tbougb living separate at tbe time, bas been modified by statute so as to make bim liable only when they are living together. Rev., 2105.

2. Same.

Rev., 2105, giving a right of action against tbe husband for tbe tort of tbe wife, while they are living together, modifying tbe common law, is not affected by tbe courtesy act of 1848, tbe constitutional provision vesting in tbe wife her separate estate; tbe marriage act of 1871-72 and other statutes giving her many of tbe rights of a feme sole; tbe Martin Act of 1911, cb. 109, allowing her to contract in certain cases as if unmarried, and tbe act of 1913, cb. 13, giving to a married woman her personal earnings, with right to sue alone for personal injuries, etc.; for tbe rights thus given are additional ones, without changing tbe common law principles as modified by tbe statute. Rev., 2105.

Claek, C. J., concurring in opinion.

Appeal by defendant from Long, J., at tbe March Term, 1920, of Forsyth.

This is an action to recover damages for slander against two defendants, who are husband and wife and living together.

The jury returned the following verdict:

“1. Did the defendant, Sarah Newsome speak of and concerning the plaintiff, M. L. Young, the words in substance, as alleged in the complaint? Answer: ‘Yes/

“2. If so, what amount of compensatory damage is the plaintiff entitled to recover of the defendants, Sarah Newsome and J. "W. Newsome? Answer: ‘Six hundred and fifty dollars ($650)/ ”

His Honor held that the husband was liable on the verdict for the tort of his wife, and entered judgment accordingly, and the defendants excepted and appealed.

Jones & Clement and McMichael, Johnson & Haclcler for plaintiff.

Sapp & McKaughn and Dallas C. Kirby for defendants.

AlleN, J.

At common law the husband was liable for the tort of his wife, although committed without his knowledge or consent and in his absence, and although living separate at the time, on the ground that “as her legal existence was incorporated in that of her husband, she *316could not be sued 'alone, and if tbe busband was protected from responsibility tbe injured party would be without redress.” Roberts v. Lisenbee, 86 N. C., 136.

Tbis principle was modified by tbe act of 1871-2 (Rev., 2105), so tbat tbe busband could only be beld liable for torts committed while tbe busband was living with tbe wife, tbe statute providing tbat, “Every busband living with bis wife shall be jointly liable with her for all damages accruing from any tort committed by her.”

Tbis statute has not been amended or repealed, and since its enactment it has been beld tbat “a busband is liable for slanderous words spoken by bis wife in bis absence and without bis knowledge or consent.” Presnell v. Moore, 120 N. C., 390.

In tbe Roberts case tbe doctrine of tbe liability of tbe busband was adhered to notwithstanding tbe courtesy act of 1848, tbe provisions of tbe Constitution of 1868 vesting in her tbe separate estate, tbe marriage act of 1871-2, and other statutes, giving her many of tbe rights of a feme sole, all of which were considered, and tbe Martin Act of 1911, cb. 109, allowing her to contract in certain cases as if unmarried, and tbe act of 1913, cb. 13, giving to a married woman her personal earnings and any damages sustained by her for personal injuries, with tbe right to sue alone, simply add additional rights without changing tbe principle.

These later statutes do not purport to change or modify tbe earlier statute, fixing liability on tbe busband, and as all may well stand together, and are certainly not irreconcilable, it cannot be beld tbat they operate as a repeal by implication.

No error.

Clare, O. J.,

concurring: Tbe common law was formulated before there was any Parliament, or when they were enacting very few statutes. It was created by judges who were for centuries Catholic priests only, and for centuries more they all were priests or laymen. It is not astonishing tbat under tbe influence of priests, who presumably knew little about such matters, it was laid down as a conclusive and irrebuttable presumption of law and fact tbat tbe wife acted solely under compulsion of her busband, and therefore tbat be was liable for her torts.

A great writer, who was far better posted on such matters, in tbe last century presents tbat when Mr. Bumble was told tbat be was responsible for bis wife’s conduct, and tbat “indeed be was tbe more guilty of tbe two in tbe eye of tbe law; for tbe law supposes tbat your wife acts under your direction.” Mr. Bumble replied: “If tbe law supposes tbat, tbe law is a ass — a idiot. If that’s tbe eye of tbe law, tbe law’s a bachelor; and tbe worst I wish tbe law is tbat bis eye may be opened by experience.” Oliver Twist, ch. 51.

*317Priestly judges seem to bare based tbeir whole doctrine of tbe subjection of woman upon Genesis, cb. 2:23-24: “And tbe man said, tbis is now bone of my bone and flesb of my flesb; . . . tbey twain shall be one flesb.” But tbis was not tbe declaration of God, but of Adam, and is not a fact, and yet upon that false foundation was built tbe theory of tbe common law which has persisted in tbe minds of some down to tbe present day, much to tbe detriment of women whose legal rights have been far inferior to those of women in other civilized countries, and even to those living in semi-civilized countries under tbe domination of tbe Koran.

Blaekstone, who 160 years ago opened tbe first law school in England, was an intense reactionary, and in bis Commentaries emphasized these views, saying that sons take precedence over daughters in rights of inheritance, because “tbe worthiest of blood shall be preferred.” 2 Com., cb. 14; and, again, stated that tbe “very being or legal existence of woman is suspended during marriage, or at least is incorporated and consolidated into that of her- husband.” 2 Blaekstone, cb. '15. Tbis theory of merger of tbe personality of tbe wife is tbe source of all tbe legal degradation of women which it has taken so many years to conquer — and which indeed is not entirely eradicated yet.

From tbe false assumption of tbe person of tbe wife becoming a chattel of tbe husband has logically followed tbe premise that be bad tbe right to chastise her, and that her personal property became bis upon marriage, and “Tbe husband bath herein an immediate,, and absolute property devolved to him by tbe marriage, not only potentially but in fact, which never can again revert to tbe wife or her representative.” 2 Black., cb. 29. And her realty became tbe property of her husband for bis life, and there are further consequences, among them tbe anomalous “Estate by Entireties,” which is a great injustice to her, but which it is held still 'exists notwithstanding tbe Constitution of 1868 vested women with absolute ownership of tbeir property, as “if tbey were single.” Then there is tbe provision still in our Code (C. S., 4225, 4339) that in trials for seduction and abduction the jury shall not take tbe testimony of tbe woman as true, even though they do believe her, unless she is corroborated; and tbis is still one of tbe few States in which tbe privy examination of tbe woman is still required in conveyances by her, and that in all dealings between tbe wife and her husband her contract is void unless reviewed and approved by some justice of tbe peace.

Long after most of tbe above doctrines were abandoned in England, Pearson, C. J., in S. v. Black, 60 N. C., 263, reaffirmed tbe right of tbe husband to chastise tbe wife because it was bis duty to “make her behave herself,” and in S. v. Rhodes, 61 N. C., 455 (in 1868), Reade, J., sus*318tained a charge of the court below that a husband had the right to whip his wife “without any provocation/’ stating, however, that the whole doctrine had been questioned in England, repudiated in Ireland and Scotland, and “had met with little favor elsewhere in the United States.”

In view of the fact that in 1874, in S. v. Oliver, 70 N. C., 60, Settle, J., repudiated the doctrine that the husband had the right to chastise his wife under any circumstances, saying simply, “We have advanced from that barbarism”; that the Martin Act, 1911, ch. 109, recognized the right of the wife to contra'ct as if single (except with her husband), C. S., 2507, 2515; and the act of 1913, ch. 13, now C. S., 2513, under which the wife is entitled to recover her earnings -and damages for torts, it would seem that all that part of the common law which is derived from the assumption of her being under the control of her husband should be deemed “obsolete” under the terms of our statute, 1778, ch. 133, now C. S., 970, which placed among the exceptions to our adoption of the common law all those provisions which hai^e “become obsolete.”

In view of the above provisions recognizing the equality of the wife with her husband as to her property and rights of person, and especially the recent amendment to the U. S. Constitution recognizing the equality of women at the ballot box, it would seem common sense had overcome the common law as to the inequality of the sexes, and that, as a correlative, the husband should no longer be held liable for the torts of the wife, committed without his knowledge or concurrence.

This would, certainly be so if the principle rested upon the common law, because “cessant ratione, cessat eb lex.” But, as pointed out in the opinion of the Court, the act of 1872, ch. 193, now C. S., 2518, expressly provides that the husband “living with his wife shall be jointly liable with her for her torts.” This is . a modification of the common law under which the wife was not liable at all, and to that extent the doctrine is statutory, and the Courts have no choice but to declare it still in force until changed by statute.