concurring in result: At common law the wife could not maintain an action of any kind against her husband.
This doctrine was founded upon the idea that matrimony is “an honorable estate, instituted of God in the time of men’s innocency, signifying to us the mystical union that is between Christ and his Church,” and that those who assume its obligations “are no more twain but one flesh.” See Freeman v. Belfer, 173 N. C., 582.
The husband and wife become one person by marriage, and as one cannot sue himself, neither could the husband sue the wife, nor the wife the husband, and as we have substantially adopted the common law the principle prevails with us, except as it has been changed by statute.
Changes in the legal status of husband and wife began prior to 1868, but by the Constitution of that year the wife became the owner of her separate estate freed from the control of her husband, and in order that these rights of property might be protected it was provided (Rev., 408), “That the wife may maintain an action without the joinder of her husband: (1) when the action concerns her separate property, (2) when the action is between herself and her husband; and our Court has construed this section to confer upon the wife the right to maintain an action against her husband.” Graves v. Howard, 159 N. C., 598.
It thus appears that by this radical change the wife may now sue her husband for breach of contract to recover her property, and for damages to her. property, all of which is contrary to the common law.
The Legislature has also removed the disability to contract, and in 1913 provided that her “earnings” for personal services and “any damages for personal injuries, or other torts sustained by her,” shall be her separate property and “can be recovered by her suing alone.”
I think the weight of authority is that these statutes, which are to be found in most of the States, do not give a right of action against the husband for personal injuries, but simply permit her to sue alone on causes of action theretofore recognized, but as the denial of the right of *525action has always been based on the unity of the person, and as this unity has been destroyed so far as her right to maintain an action is concerned, I see no reason for holding that she cannot maintain an action against her husband for a wanton, willful injury, which permanently impairs her earning capacity, when the statute says she is entitled to her earnings and may sue alone to recover them.
If the wife can sue the husband in contract, or to recover property, or for injury to her property, why may she not maintain an action for impairment of health, which decreases her earning capacity, caused by the wanton conduct of her husband?
The danger to the domestic tranquility is not greater in the one case than in the other, and at last this must depend not on common law or statute but on mutual respect, confidence, forbearance, and affection.
Brown v. Brown, Anno. Cases, 1915, D (Conn.), and Feidler v. Feidler, 42 Okla., 124, are direct authorities for the position herein stated, and in Thompson v. Thompson, 218 U. S., 611, a case relied on by the defendant, there is a vigorous dissent by Justice Harlan, concurred in by Justices Holmes and Hughes, which he concludes as follows: “Congress, under the construction now placed by the Court on the statute, is put in the anomalous position of allowing a married woman to sue her husband separately, in tort, for the recovery of her property, but denying her the right or privilege to sue him separately, in tort, for damages arising from his brutal ^ssaults upon her person. I will not assume that Congress intended to bring about any such result. I cannot believe that it intended to permit the wife to sue the husband separately, in tort, for the recovery, including damages for the detention of her property, and at the same time deny her the right to sue him separately for a tort committed against her person.”