Cohen v. Cohen, 66 F. Supp. 312 (N.D. Tex. 1946)

Kathryn B. Cohen in pro per.

Harris & Palmer, of Dallas, Tex., for defendant.

ATWELL, District Judge.

Plaintiff seeks judgment for a million dollars against her husband, the defendant, a resident of Texas. She enters this court under the diversity provision.

Her petition contains twenty-two pages accompanied by twenty-four exhibits. She complains of various wrongs, among which is an assault, charging unchasteness, and countless recitals as to the defendant's alleged perverted life with other women.

The defendant moves to dismiss on the ground that she may not maintain such a suit.

It is immaterial, insofar as the law is concerned, whether the law of California, or the law of Texas, governs. It happens that the law of each state is the common law unchanged by either constitutional or statutory provision. She is still under coverture and has no right to sue her husband for a tort.

Perhaps the leading case in California is Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L.R.A.,N.S., 699. Probably the original case in Texas is Nickerson v. Nickerson, 65 Tex. 281, followed by Gowin v. Gowin, Tex.Com.App., 292 S.W. 211, and recognized as late as Lunt v. Lunt, Tex.Civ.App., 121 S.W.2d 445.

This rule is not novel. It is recognized pretty well over the United States. 41 Corpus Juris Secundum, Husband and Wife, § 396, page 883; among which citations is the case of Faris v. Hope, 8 Cir., 298 F. 727; Karalis v. Karalis, 231 Minn. 31, 4 N.W.2d 632; Eddleman v. Eddleman, 183 Ga. 766, 189 S.E. 833, 109 A.L.R. 877, and Ewald v. Lane, 70 App.D.C. 89, 104 F.2d 222.

The lay mind is sometimes shocked by the apparant blindness of the common law to the completely merging results of its doctrine of coverture. Chastisement of the wife by the husband was even recognized, and there was no liability, so far as the husband was concerned, to the wife for such an act.

The punishment of the husband who engages in such excesses is in the hands of the government. Officers of the state, or city, speedily and quickly enter and discipline the assaulting husband and the annulment courts are open to the wife for excesses and cruelties so visited upon her.

The motion to dismiss must be sustained.