DuBois Borough v. Baker

Opinion, Me. Justice Geeen : This was an action brought by a married woman and her husband, in right of the wife, to recover damages for a personal injury to the wife. In order that the damages which might be recovered by the husband should be recovered in this action, along with those which belonged peculiarly to the wife, the husband on the day of the trial filed a disclaimer of all his damages, under the first section of the act of 11th June, 1879, P. L. 126. When the application to file the disclaimer was made to the court, the defendant objected on the ground that the act requires the disclaimer to be filed at the time of bringing the suit, but the court overruled the objection and granted the defendant an exception. The first section of the act is in the following words:— That in all actions hereafter to be brought in any of the courts of this commonwealth, in the name of the husband and wife, for the use of the wife, to recover damages for injuries done to the wife, evidence may be given to show the value of the wife’s services and the expense arising in consequence of such injuries and recovery may be had therefor: provided, however, that at the time of bringing any such action the husband shall file a stipulation in writing disclaiming all right on his part to recover damages for such injuries by an action in his own name: and provided further, that any damages so recovered shall be for the use of the wife. Prior to the act of 1879, the wife could only recover the damages which were personal to herself, and the husband had a [271] right of action for the loss of the wife’s services and the expense to which he was subjected for the medical treatment and nursing of the wife, and such medicines and other necessary expenses as were incident to her recovery. By the act in question provision was made for the recovery of the husband’s damages in the action by the wife. It required a statute to make this transfer. The right to make the transfer, however, so that it should become effective for the wife, was made dependent upon a certain condition, to wit: that the husband should file his disclaimer at the time of bringing the action. In this ease the action was brought on October 2, 1883, but the disclaimer was not filed until May 25, 1887, just as the case was called for trial. The plain letter of the statute was therefore violated, and as a necessary consequence the right to combine the two causes of action did not arise. We cannot disregard the very words of the act. Their meaning is not in the least degree doubtful, and as a matter of course we must enforce them. Both the right to give evidence of the husband’s damages and the right to recover for them, are given by the enacting clause, and compliance with the explicit terms of the proviso clause is as essential to the one as to the other. Hence, there is no force in the argument that the evidence of the husband’s damages was given without objection. The right to recover those damages in this action still depended upon compliance with the proviso. We are clearly of opinion that there was error, both in permitting the disclaimer to be filed at the time of the trial, and in directing the jury that they might allow for both the husband’s and the wife’s damages in their verdict. Judgment reversed, and new venire awarded.