Holding: Under N.C. Acts of 1871–72, c. 193, § 25 (Rev. § 2105), a husband who lives with his wife is liable for her torts, even though he was not present when she committed them and did not know of them.
Procedural posture: Plaintiff sued defendants husband and wife to recover damages for wife’s slander against him. Jury found for plaintiff and awarded damages, which plaintiff was entitled to recover from both husband and wife. Defendants appealed. Islamic law is not directly relevant, except that the concurrence notes that “even [women] living in semicivilized countries under the domination of the Koran” have had greater legal rights than American women.
Judgment: Affirmed in an opinion by Justice Allen, with a concurrence by Chief Justice Clark.
Facts: The plaintiff sued the defendants, a husband and wife pair, for the wife’s slander against him. The jury found for the plaintiff, and the judge stated that the husband was liable on the theory that husbands are liable for their wives’ torts. The Supreme Court of North Carolina upheld this opinion, based on N.C. Acts of 1871–72, c. 193, § 25 (Rev. § 2105), which states that “[e]very husband living with his wife shall be jointly liable with her for all damages accruing from any tort committed by her.” The Court found that this statute codified the previous common law rule.
In a concurring opinion, Chief Justice Clark stated that theory of merger, in which a wife’s legal personality and property is “merged” into those of her husband upon marriage, is an antiquated common law proposition. He argued that this theory “is the source of all the legal degradation of women,” and that it is especially outdated now that women have the right to vote. Compared to other women in both “civilized” and “semicivilized countries under the domination of the Koran,” in his view, American women have inferior rights under the common law system. However, he agreed with the majority that the N.C. Act of 1872 codified the common law principle, and because courts have no power to modify a statutory principle, the lower court’s ruling must stand.