Rockwell v. Waverly, Sayre & Athens Electric Traction Co.

Opinion by Me. Chief Justice Stebbett, The cause of action in this case arose after the passage of the Act of May 8, 1895, P. L. 54, entitled “An act relative to actions by husband and wife for injury to the person unlawfully inflicted on her.” This appeal involves the construction of that act. [570] When the cause was called, for trial, 'on September 21,1897, an affidavit was presented to the court below by plaintiff’s husband, E. A. Rockwell, setting forth that this, his wife’s suit, and his own suit, being Nos. 161 and 162 of September term, 1896, were actions to recover damages for injuries unlawfully inflicted by the defendant company upon the person of his said wife, whereby a right of action accrued to her and also to himself, and asking that the two actions be consolidated and tried by one and the same jury; that separate verdicts be rendered therein, determining the respective rights of his wife and himself, and that separate judgments be entered, as provided in said act. In this request the plaintiff joined and moved the court to consolidate the actions, etc., but the defendant objected, and thereupon the motion was denied, and the trial proceeded. Previously to the application, the plaintiff’s statement, in which the .fact of her coverture was not disclosed, had been filed, and the defendant company pleaded “not guilty’’thereto. On the trial, the fact of plaintiff’s coverture was further shown, and, at the close, defendant requested the court to instruct the jury that “ under the pleadings and evidence . . . . the verdict must be for the defendant.” This was refused and, the case having been submitted to the jury, a verdict was rendered in plaintiff’s favo'r for $1,200. The refusal of the court to charge as requested constitutes the only specification of error. The defendant company does not of course complain of the refusal of the court to consolidate the two actions for the purpose of trial, nor is it in a position to do so, because the court in denying the plaintiff’s motion sustained its objection thereto. Defendant’s contention is that the plaintiff was not entitled to recover because her suit was brought by her alone for a cause of action arising after the passage of the act of May 8,1895, in which it is claimed no provision is made for the subsequent consolidation of such actions as this. It is not claimed that the evidence was insufficient to warrant the jury in finding as they did. This is a quite too narrow construction of the act, the manifest purpose of which was to provide that the two rights of action, recognized as still existing in both husband and wife [571] respectively, should be redressed in only one suit to which both husband and wife are made parties before trial. While the last section of the act makes special provision for the consolidation of suits pending at the date of its passage, it by no means follows that actions brought afterwards may not be consolidated for the purpose of a trial in which the respective rights of both husband and wife may be redressed in the manner directed by the second section of the act. That'section declares: “ Either the husband or the wife may waive his or her right of action, and his or her failure to join in the suit within twenty days after service of a rule to join or be barred shall be conclusive evidence of such waiver, but if both join in the suit, separate verdicts shall be rendered, one verdict determining the right of the wife and the other verdict determining the right of the husband, and separate judgments shall be entered thereon with the right to separate executions. The rule herein referred to may be entered by the court of its own motion.” This section clearly recognizes the continued existence of the same right of action in each, husband and wife, that they respectively had before the passage of the act, and manifestly contemplates the bringing of an action by either afterwards; and also provides a mode by which the other shall either join in the suit or be barred as fully and effectually as if he or she had actually waived his or her right of action. If one of the parties may thus be compelled to join in the action of the other, or be adjudged to have waived his or her right of action, it is certainly competent for both to voluntarily assent that their respective rights of action be redressed in one suit, to which each thus voluntarily becomes a party, as fully and effectually as by being ruled to join. The act evidently contemplates a suit brought to trial, in which both husband and wife have previously become parties either voluntarily or by being ruled to join in the suit after it had been brought. The main purpose of the act is thus fully accomplished, and an issue is presented for trial, in which the two rights of action may be redressed in only one suit. Any other construction of the act would be contrary to its spirit as well as the true intent and meaning of the section above quoted. It matters not that the husband and wife, as in this case, had each brought a separate suit. They each had a separate [572] right of action which it was the privilege of either or both to assert. That right, as already stated, is distinctly recognized by the act, which contemplates nothing more than that the two rights of action he redressed in one suit, without reference to when suit was originally brought. The consolidation of suits, which is equivalent to an amendment by adding the other party, is evidently contemplated by the act, and as a general rule it should he allowed by the court on such terms as to costs, etc., as in each case may be just and reasonable. It was not the fault of the plaintiff or her husband that consolidation was not permitted in this case; and surely the former cannot be prejudiced by the mistaken action of the court in denying the motion to consolidate. The defendant company, of course, is not in a position to complain, because in denying the plaintiff’s motion, the court sustained its objection thereto. We find nothing in the record of which the defendant has any just reason to complain. Judgment affirmed.