The defendant made no motion to nonsuit, and does not contend that there was not sufficient evidence to justify the verdict on the first issue, “Did the defendant wrongfully and recklessly infect the plaintiff with a loathsome disease, as alleged in the complaint.” He submitted no requests for instructions. The exceptions to the evidence do not require discussion. Practically the only point presented by this, appeal is whether or not a cause of action is alleged in the complaint.
Paragraph 5 of the complaint alleges “that the defendant, by reason of his illicit relations with lewd and profligate women, contracted a venereal disease of a foul and loathsome character, and of a highly infectious and malignant nature, and although he well knew that he was so infected, and well knew the character of said disease and its dangerous and infectious nature, he concealed from the plaintiff the fact that he wAs so infected with said disease, and on or about the.day of — ., 1919, committed an assault and trespass upon the person of the plaintiff, and infected her with said foul and loathsome disease, injuring her and damaging her as hereinafter set out.”
There can be no question in this day that if the defendant had violently assaulted his wife and caused serious bodily injury to her person, and humiliation to her, she could maintain an action for damages against him. Even under the obsolete ruling of the courts (for it was never statutory) that a husband could chastise his wife with immunity, there was an exception that he was liable if he caused her serious bodily harm or permanent injury.
In S. v. Monroe, 121 N. C., 677, it was held that a druggist committed an assault when he dropped croton oil on a piece of candy and gave it to a third party. It was a far greater assault for the husband to communicate to his wife, while concealing from her the fact that he was infected therewith, a foul and loathsome disease — which has caused her serious bodily injury, and which the medical books hold to be a permanent injury of which she can never be entirely cured.
In S. v. Fulton, 149 N. C., 485, the Court held that the husband was indictable for wantonly and maliciously slandering his wife under Rev., 3640, now C. S., 4230, which made it indictable for “any one to slander an innocent woman.” The objection was there taken that this did not apply to the husband, by reason of the marriage relation, and that this had been so held in S. v. Edens, 95 N. C., 693. The Court overruled S. v. Edens, but held, by a divided Court, that the defendant in the Fulton case had a vested right to rely upon S. v. Edens.
*519The plaintiff, who was 22 years of age and living with ber father at the. time of ber marriage, was shown to be of good character at that time, and ever since, by a minister of the gospel, and other witnesses, and even the defendant testified that “the plaintiff was a virtuous woman and was faithful to me during our married life, and yet is so far as I know — I don’t say otherwise.” He further testified that he was divorced from his first wife; that he committed adultery while living with his second wife, and furnished her with witnesses to prove it by which she got a divorce upon that ground; that he had had trouble in Gastonia on account of a woman, and says “women have always been my trouble. Have recently been convicted of being drunk and carrying a pistol.” It was stated on the argument that the defendant has recently been convicted in Yirginia, under the White Slave Act, and sentenced to 2 years, and has also been convicted and sentenced in that State for abduction of a girl under 16, and that case is pending on appeal.
The defendant also admitted, on cross-examination, that he has had venereal disease, and said: “Sometimes it takes me longer to get over a case of gonorrhea than others. Sometimes it takes me a month, sometimes four months, and sometimes six months.” . '. . “On Sunday after this suit was started I had a lewd woman in my automobile, and passed the plaintiff’s house four times; I had my arm around the back of the seat.”
Notwithstanding that the defendant had testified on the cross-examination that his wife was a virtuous woman, he intimated on being recalled that he was forced to marry her because she had become pregnant by him. The plaintiff testified that he did not have sexual intercourse with her until after the marriage, and that he tried to get her to procure a divorce from him, offering to furnish her with witnesses to prove his adultery while living with her. He did not deny this, and admitted that he had done this with his second wife to enable her to get a divorce. The testimony of the plaintiff was that she had contracted the disease from her husband, and as to her humiliation and physical injury sustained thereby, and the physician testified that she was thus infected, and that his diagnosis was confirmed by clinical findings and by laboratory tests of another expert. The defendant testified that on one occasion “plaintiff came to my office and could not get in; I was locked in, the woman in there got out.”
As the plaintiff’s counsel well said, aside from the question of assault, it is a well settled proposition of law that a person is liable if he negligently exposes another to a contagious or infectious disease, Skillings v. Allen, 173 (Minn.) N. W., 663, A fortiori the defendant would be liable in the present case whether guilty of an assault or not, and independent of the fraud or concealment. In Schultz v. Christopher, 65 *520Wash., 496, and in Bandfield v. Bandfield, 117 Mich. 80 (cases cited by tbe defendant), tbe' Court recognized tbat tbe infection of tbe wife witb venereal disease by tbe busband was a tort, but beld tbat upon tbeir statutes, wbicb differ from those in this State, tbe wife could not sue ber busband for a tort upon ber person. But in Prosser v. Prosser, (1920), 102 S. E. (S. C.), 787, under a statute wbicb is verbatim, our Rev., 408, C. S., 454, it was beld tbat “under sucb statute a married woman can maintain an action in tort against ber busband for an assault upon ber,” bolding.tbat while it was otherwise at common law, a proper construction of this statute “gives to a wife every 'remedy against tbe busband for any wrong she might suffer at bis bands. More than this, a wife bas a right in ber person, and a suit for a wrong to ber person is a thing in action; and a thing in action is property, and is ber property, and tbe action is therefore maintainable under Messervy v. Messervy, 82 S. C., 550.”
In Graves v. Howard, 159 N. C., 594, Allen, J., said: “Rev., 408, further provides tbat tbe wife may maintain an action without joinder of ber busband: (1) when tbe action concerns ber separate property; (2) when tbe action is between herself and ber busband; and our Court bas construed this section to confer upon tbe wife tbe right to maintain an action against ber busband, Shuler v. Millsaps, 71 N. C., 297; McCormac v. Wiggins, 84 N. C., 279; Manning v. Manning, 79 N. C., 293; Robinson v. Robinson, 123 N. C., 137; and Perkins v. Brinkley, 133 N. C., 158.”
Tbe defendant objects tbat this applies only to property rights concerned in actions, but damage or injury to ber person is a property right. Our statute, 1913, cb. 13, provides: “Tbe earnings of a married woman, by virtue of any contract for ber personal service, and any damage for personal injuries or other torts sustained by her, can be recovered by ber suing alone, and sucb earning or recovery shall be ber sole and separate property as fully as if she bad remained unmarried.” This gives ber tbe right of recovery of damages for any personal injury or other tort sustained by ber, and there is no exemption of ber busband from liability in an action by ber wbicb she is authorized to bring under Rev., 408; C. S., 454. As long as the Court beld (Price v. Electric Co., 160 N. C., 450) tbat tbe recovery by tbe wife of damages for personal injuries was tbe property of tbe busband, it was useless for her to sue him under tbe right given by Rev., 408 (2), but tbe act of 1913, cb. 13, making sucb damages ber property was promptly passed at tbe first session of tbe General Assembly thereafter curing this and enabled tbe wife to maintain an action against ber busband to recover damages for injuries committed upon her person by him.
*521For tbe same reason tbat in S. v. Fulton, supra, tbe Court beld tbat tbe statute making "any one” liable to indictment for tbe slander of a virtuous woman made tbe busband liable to sucb indictment, notwithstanding tbe common-law theory, and even tbe express decision in S. v. Edens, supra, to tbe contrary, we must bold tbat tbe statute of 1913, ch. 13, and Eev., 408, gave tbe wife a right to recover damages for injuries to her person, or for other torts sustained by her, against her bus-band as fully as against any one else, as was beld in Prosser v. Prosser, supra.
In 26 R. C. L., 577, it is said: “Tbe fact tbat a case is novel does not operate to defeat a recovery if it can be brought within tbe general rules applicable to torts.” In Brown v. Brown (1914), 88 Conn., 42, tbat Court pertinently says tbat “if tbe wife may sue for a broken promise, why may she not sue for a broken arm?” Like tbe South Carolina Court, in the Prosser case, it bolds tbat her claim for damages is a property right. It says: “Tbe tort gives rise to a claim for damages. Sucb a claim is property, not in her possession, but which she may by action reduce into possession, just as she might before her coverture have bad an action against him for sucb a tort committed before tbat event. Tbe husband’s delict,' whether a breach of contract or a personal injury, gives her a cause of action. Both necessarily follow from tbe fact tbat a married woman now retains her legal identity and all her property, both tbat which she possessed at tbe time of marriage and tbat acquired afterwards.”
In Johnson v. Johnson (Ala.), 77 So., 335, tbe Court beld tbat tbe statute of tbat State authorizing tbe wife to recover damages for injuries to her person or reputation made tbe damages her separate property, and tbe statute which authorized her to sue alone for their recovery, authorized her to sue her busband for sucb injuries and torts, abrogating tbe common-law fiction of identity between busband and wife to tbat extent. Tbe statutes of tbat State upon tbat subject are almost identical with ours above quoted.
Fielder v. Fielder, 42 Okla., 124, beld tbat a married woman could maintain an action against her busband for injuries received from a gun shot wound inflicted during coverture. Tbat case, referring to Thompson v. Thompson, 218 U. S., 611, pointed out tbat tbe latter decision was based upon tbe statutes for tbe District of Columbia, which in this respect are not as liberal and progressive as in most of tbe States, and tbe Court concurred in tbe dissenting opinion of Justices Marian, Holmes, and Hughes (which, in tbe opinion of tbe writer, was tbe “big end” of tbe Court at tbat ’time).
In Gilman v. Gilman, 78 N. H., 4, it was beld tbat tbe statute of tbat State, providing tbat a married woman may “sue and be sued on any *522contract by her made, or for any wrong done, as if sbe were unmarried,” put busband and wife on an equality as to property, torts, and contracts, and tbat sbe could maintain an action against ber busband for assault as fully as sbe could against any one else. In Fitzpatrick v. Owens, 124 Ark., 167, tbe Court beld that a married woman may maintain an action against ber busband'for a tort, in tbat case for an assault, and when it resulted in a wrongful death ber administrator could maintain an action therefor. And this is tbe trend of recent decisions throughout tbe country, 13 R. C. L., 1397; and notes 1915 D, p. 73.
As to the suggestion that tbe defendant could be indicted, tbat was a matter for the State, which has not thus proceeded, and a conviction would be no reparation to tbe plaintiff. Besides, if tbe unity does not prevent an indictment, why should it prevent a civil action ?
At common law neither civil nor criminal actions could be maintained by tbe wife against tbe busband because of tbe alleged unity of persons of busband and wife, or rather tbe merger of tbe wife’s existence into tbe husband’s. Tbe real reason was tbat by marriage tbe wife became tbe chattel of tbe busband (as a reminder of which to this day at a marriage some man “gives tbe woman away”), and therefore ber personal property by tbe fact of marriage became bis, as was tbe case in this State as.to wives until tbe Constitution of 1868, though as to slaves it bad ceased on their emancipation in 1865. Tbe owner lost tbe right to chastise bis slaves in 1865, but tbe wife was not emancipated from tbe lash of tbe busband till nine years later, in 1874, when in S. v. Oliver, 70 N. C., 60, Settle, J., tersely said, “We have advanced from tbat barbarism.” His authority for making such ruling was tbat ch. 5, Laws 1715, and cb. 133, Laws 1778, now C. S., 9'70, adopted such parts only of tbe common law which are “not abrogated, repealed, or become obsolete.” So much of tbe common law as exempted tbe busband from liability civilly or criminally for assaults, slanders, or other torts or injuries committed by him on bis wife is invalid now, both because it has become obsolete and at variance with tbe customs and sense of right, and with our form of government, which confers “equality before tbe law” upon all, and because it has been expressly abrogated and repealed by tbe statutes above quoted, which confer upon tbe wife tbe right to sue and be sued alone, “when tbe action is between herself and ber busband,” and to recover, suing alone, damages for ber personal injuries or other torts sustained by her (act 1913, ch. 13, uoav C. S., 2513) without exempting ber busband from such liability.
Tbe true ground for tbe exemption formerly of tbe busband from liability to tbe wife for bis torts, and for bis assumption of ber property, as already said, was because by tbe marriage sbe became bis chattel. The fanciful ground assigned for this doctrine, which was far more unjust to *523married women tban that prevailing in other countries under the Civil law or even in the countries under the rule of the Koran, is stated by some of the old writers to be the words in Genesis 2 :23-24: “And Adam said, This is now bone of my bones and flesh of my flesh,’ ” adding that a man and wife “shall be one flesh.” And now, “speaking for myself and not by commandment” (as St. Paul said on more than one occasion, 1 Oor., 1:6, and 2 Cor., 8:8), this statement was made by Adam and not by Deity, and is untrue as a matter of fact, besides Adam was not a lawgiver, but the most culpable lawbreaker known to all the ages. The consequence of his lawbreaking, according to the belief of multitudes, was the greatest and most universal of any man, and according to orthodox teachings, affects all mankind since, and if we are.to credit the vision of the great English poet, had its immediate effect upon the inanimate world as well:
“Earth, felt the wound; and nature from her seat, Sighing through all her works, gave signs of woe That all was lost.” — Paradise Lost, Book XX, line 782.
It is more than passing strange that in this day of enlightenment, this statement by the greatest malefactor of history, who could frame no laws for any future day and generation, nor keep those made for him-' self, should be solemnly cited to justify the continuance of age-long injustice and degradation to one-half of the human race. The origin of such treatment was perhaps natural in the economic conditions of a barbarous age, when superior physical force made the wife the slave of the husband. But those conditions have passed. All the conditions and customs of life have changed. Many laws have become obsolete, even when not changed by statute, and the Constitution, as this has been, and no principle of justice can maintain the proposition in law, or in morals, that a debauchee, as the defendant admits himself to be, can marry a virtuous girl, and, continuing his round of dissipation, keep up his intercourse with lewd women, contracting, as he admits, venereal disease, communicate it to his wife, as the jury find, subjecting her to humiliation and ruining her physically for life, and seeking to run off with all his property, abandoning her to utter indigence; yet be exempted from all liability by the assertion that he and his wife are one, and that he being that one, he owes no duty to her of making reparation to her for the gross wrong which he has done her.
It must be remembered that there is not, and never has been, any statute in England or this State declaring that “husband and wife are one, and he is that one.” It -was an inference drawn by courts in a barbarous age, based on-the wife being a chattel, and therefore without any rights to property or person. It has always been disregarded by *524courts of equity. Public opinion and the sentiment of the age as expressed by all laws and constitutional provisions since bave been against it. The anomalous instances of that conception, which still survive, in some courts are due to construing away the changes made by corrective legislation or restricting their application.
"Whether a man has laid open his wife’s head with a bludgeon, put out her eye, broken her arm, or poisoned her body, he is no longer exempt from liability to her on the ground that he vowed at the altar to “love, cherish, and protect” her. Civilization and justice have progressed thus far with us, and never again will “the sun go back ten degrees on the dial of Ahaz.” Isaiah, 38 :8.
No error.