This appeal raises the question whether, under our system of law, a wife may maintain an action to recover damages for an assault and battery committed upon her person by the husband.
It is conceded, of course, that at the common law no such action could be maintained. That law regarded the husband and wife, for judicial purposes, as but one person, and, we may add, the husband was that person. Hence the rule to which we have referred and one result that husband and wife could not contract with or sue each other. While much of that law has disappeared under the pressure of a public opinion steadily growing in enlightenment, it must still be conceded that it is not for the courts by sudden strokes of policy to make deep innovations upon the established law. We think, then, that the question now before us may be appropriately stated in the following form: Have our statutes on the subject of the rights of married women left unchanged the theory of legal identity, of old the foundation of the marital status, merely providing exceptions to the necessary consequences of that theory, or has that foundation been so substantially changed that, except as disabilities have been retained, each has against the other all the rights of persons not so related? Under our statutory system, our opinion is that the latter alternative may and should be adopted.
Section 4492 of the Code provides that "the wife has full legal capacity to contract as if she were sole, except as otherwise provided by law." "The husband and wife may contract with each other," etc. Section 4497. "All damages which the wife may be entitled to recover for injuries to her person or reputation are her separate property." Section 4489. "The wife must sue alone * * * for injuries to such property, * * * or for all injuries to her person or reputation," etc. Section 4493. There are other sections bearing more or less remotely upon this subject. It may be said that the last-quoted section was not enacted with a view to precisely the case here presented; but these sections, the last included, have the effect of abrogating the fiction of legal identity, and seem thereby, except as otherwise prescribed, to destroy the foundation of the common law in its application to questions touching the rights of husband and wife inter se. *Page 44
In Bruce v. Bruce, 95 Ala. 563, 11 So. 197, where the wife sued the husband in detinue, the court said:
"Our conclusion is that, if the suit is one which the statute requires to be brought in the name of the wife alone, it may be prosecuted against her husband, if he is the party responsible for the violation of the right to be vindicated by the suit. The effect of the statute is that the legal rights of the wife as against her husband may be enforced by legal remedies."
In Cook v. Cook, 125 Ala. 583, 27 So. 918, 82 Am. St. Rep. 264, the court, after referring to the decision in Bruce v. Bruce, said that:
"The right to sue her husband to recover from him possession of her realty rests upon the same statutory provision and the same principles declared in the case cited as to her personalty, and can no more be denied in respect of one class of property than in respect of the other. * * * To hold otherwise would be to give the husband rights and estates in the wife's lands which our statutes not only do not provide for, but expressly provide against."
The ancient common law of England, which gave the husband, at least among "the lower rank of the people," the right to restrain the wife of her liberty and to chastise her (1 Blk. Com. 444), was never in this state the law for any rank or condition of people. Fulgham v. State, 46 Ala. 143. The Legislature, as we have seen, has given the wife an action against the husband for injuries to her property rights, and we can hardly conceive that the Legislature intended to deny her the right to sue him separately, in tort, for damages arising from assaults upon her person. The language of the statute covers the one form of injury as well as the other, and we hold that the wife was properly allowed to proceed with her suit, defendant's pleas and special charges requested to the contrary nevertheless. The wife's remedies, by a criminal prosecution or an action for divorce and alimony, which in some jurisdictions are allowed to stand as her adequate remedies for wrongs of the sort described in this complaint, so far from being adequate remedies, appear to us to be illusory and inadequate, while, as for the policy which would avoid the public airing of family troubles, we see no reason why it should weigh more heavily against this action than against those which the courts universally allow.
Every court has the power to preserve the common decencies of life. In the exercise of this power, the constitutional rights of parties and witnesses duly observed, the courts exercise a large discretion in respect to the mode of examining witnesses. They may permit a female witness to answer questions shocking to modesty — and such questions are sometimes necessary — in the way least offensive to a proper sense of decency. Probably in this case the witness balked too readily, but there is no evidence that the defendant's right of cross-examination was in any way limited, nor that in any other respect defendant was injured by that ruling of the court which permitted the plaintiff to answer in writing the question made the subject of the third assignment of error.
The fact, if it was a fact, that plaintiff had refused to allow defendant's father to sit at table with her; that she had carried away from the home carpets and rugs furnished by defendant; that she had advised the defendant's patients against having his services as a physician; that she had complained about plaintiff's absence from home at night; that she would not cook his meals; that she would not inform him of telephone calls for him in his professional capacity as a physician; and other like examples and evidences of plaintiff's failure to observe the duties of a faithful wife, though doubtless well calculated to embitter and exasperate the ordinary husband, furnished no sufficient excuse for the alleged assault, nor was evidence of these things admissible in mitigation of damages; this last for the reason that the occurrences sought to be proved were not shown to have had anything like an intimate or close connection in point of time with the assault of which the plaintiff was complaining. Keiser v. Smith, 71 Ala. 481, 46 Am. Rep. 342; Lovelace v. Miller,150 Ala. 422, 43 So. 734, 11 L.R.A. (N.S.) 670, 14 Ann. Cas. 1139; 7 Mayf. Dig. p. 44. These authorities answer also assignments of error numbered 14, 22, 23, 24, and 27. And it is clear that the court correctly ruled in not allowing the defendant husband to show, by way of justification or mitigation, that plaintiff was of a mean and fussy disposition, as appears in those rulings made the subject of assignments numbered 25, 26, and 28. And so of charge 3 refused to the defendant.
The question shown by the thirteenth assignment of error included an argument, as the trial court observed, and for that reason, if none other, error cannot be affirmed of the court's ruling against it.
Assignments 15, 16, 17, and 18. The court committed no error in sustaining the plaintiff's objections to questions by which the defendant sought to elicit evidence to the effect that plaintiff complained to a magistrate, after the assault alleged, that the magistrate refused to issue a warrant for defendant, and the reasons assigned for such refusal. What the magistrate said or did at that time was clearly incompetent and inadmissible.
Plaintiff was properly allowed to show that she had a pending suit against the defendant at the time of the assault and battery alleged as going to show a motive.
Evidence as to where plaintiff went and how long she stayed at sundry places, and what was done for her by some of her neighbors and relatives during a good many hours after the assault and battery complained of, could only have been competent and relevant on the theory that these things tended to show the nature and extent of her injuries. *Page 45 But the court thinks these things had no legitimate tendency in that direction. There was no element of spontaneity in these subsequent transactions. They may have been calculated and must have rested upon inferences drawn from the declarations or conduct of the plaintiff hours after the wrong of which she was complaining. And yet the circumstances shown by the testimony against which the fourth, fifth, sixth, seventh, and eighth assignments of error are laid may have had much to do with enlisting the sympathy of the jury and influencing their judgment of the nature and extent of the injuries suffered by the plaintiff. Moreover, several items of the testimony so admitted tended to produce in the minds of the jury the impression that for plaintiff's separation from her husband and home she was entitled to damages in this action. As we shall see, damages on that account could not be awarded in this cause, and the rulings to which we now refer necessitated requests for instructions to that effect. It is doubtful that such instructions cured the improper influence of this evidence in any of its bearings upon the question of damages. Maryland Casualty Co. v. McCallum, 75 So. 902.1 We think it reasonably certain that the general tendency of the evidence to arouse the sympathy of the jury upon an improper consideration was not cured. The rulings here shown are therefore held for reversible error.
"There is no law to compel a wife to live with her husband on her land or on his. There is no legal prohibition upon her separating from him and living apart." Cook v. Cook, supra. The like may be said of the husband, though he must support and maintain the wife as long as she does not abandon him without just cause. This consideration entered into the argument for the conclusion that the wife might maintain this action. Damages for separation imply support and maintenance pending separation. Relief of that sort is awarded in the courts of equity upon considerations which have no place in an action for assault and battery. The two remedies cover entirely different fields, and one may not be made to serve the purpose of the other.
Charge 1, requested by the defendant, was a proper charge; but the court holds there was no reversible error in its refusal, for the reason that it was covered substantially by charge 2, given at defendant's request.
We find in the evidence, as reported in the bill of exceptions, no reason why the court should have given the fourth charge requested by defendant. It seems to be an abstraction, its consideration not being required by any tendencies of the evidence.
Charges 7, 9, 10, and 11, requested by defendant, were properly refused. These charges were misleading, argumentative, and invasive of the province of the jury. The issue to be determined was not whether the facts justified an assault by plaintiff on the defendant, but whether there were any circumstances to justify or mitigate defendant's confessed assault upon the plaintiff. These charges directed attention to this immaterial issue, solved it for the jury, and tended to produce the impression that it should conclude the case against the plaintiff.
We have said enough to indicate the opinion of the court on all the questions reserved and argued.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and MAYFIELD, JJ., concur. SOMERVILLE, GARDNER, and THOMAS, JJ., dissent.
1 200 Ala. 154.