Hess v. Heft

Opinion by Smith, J., It is not material whether the injury set forth in this action was a malicious prosecution or a false imprisonment. In practice, the distinction between these torts has related to the form of the action, and this distinction is abolished by the procedure act of 1887. The liability of the defendant for the wrong here complained of is to be tested by certain well settled principles. At common law, the husband was liable for the torts of his wife, whether committed before or during coverture. For a tort in which the' wife took an independent part, the husband and wife were jointly liable. For a tort which she committed hy his direction, he alone was liable. The wife being sub pot-estate viri, if she committed a tort in the husband’s presence it was presumptively in obedience to his direction; and unless it appeared that she acted wholly of her own will he alone was liable: 2 Kent, 149 ; Quick v. Miller, 103 Pa. 67; Franklin’s Appeal, 115 Pa. 534 ; Mfg. Co. v. Hiel, 115 Pa. 487. These principles remain without statutory modification. The Act of April 11, 1848, sec. 6, P. L. 536, preserved to the wife the ownership of her property as fully after marriage as before, [585] but did not protect it “ from levy and execution on any judg-, ment recovered against tbe husband for the torts of the wife: ” provided that “ in such cases execution shall be first had against the property of the wife.” Except, however, for this recourse to the wife’s property in the first instance, the husband’s liability remained as before : Quick v. Miller, 103 Pa. 67. Such recourse, indeed, was a change in form rather than substance. Prior to this act the wife’s personalty upon marriage vested in the husband, and thus became subject to execution against him. The statute preserved this liability as to execution for her torts, while securing her separate ownership. The married persons’ property act of June 3, 1887, P. L. 332, provided that a married woman might sue and be sued “ for torts done to or committed by her, in all respects as if she were a feme sole,” and that damages recovered against her “ shall be payable out of her separate property and not otherwise. ” The married persons’ act of June 8, 1893, P. L. 344, which repealed the act of 1887, gives a married woman capacity with certain exceptions, “ to sue and be sued civilly in all respects and in any form of action and with the same effect and results and consequences as an unmarried person; ” but it neither modifies in any manner her husband’s liability for her torts, nor contains any provision limiting recourse to her separate property for damages recovered against her; much less does it attempt to extend her liability to torts which before its passage were, in fact or by legal presumption, the torts of her husband. Its only specific provision as to her torts is that she may not be arrested or imprisoned for them. This, however, is but declaratory of the law as it had long stood. For the torts'of the wife, the husband only was liable to arrest on mesne process, or to execution against the person : Com. v. Keeper, 11 W. N. C. 341; Whalen v. Gabell, 120 Pa. 284; 3 Bl. Com., 414; 2 Kent, 149; Vocht v. Kuklence, 119 Pa. 365. Thus there has been no statutory change in the common law liability of husband and wife for the torts of the wife, and no change in the common law remedy except the provision of the act of 1848 directing execution first against the property of the wife. The case before us is therefore to be governed by the common law principles respecting liability for the torts of a married woman. The evidence shows without contradiction, that the husband [586] and wife together made the complaint on which the plaintiff was arrested, and that at every point at which the wife acted in the prosecution the husband was present. Prima facie, therefore, the husband alone was liable: Quick v. Miller, 103 Pa. 67. Presumptively, the wife’s participation in the proceeding was by the husband’s direction; and not only was there a total absence of evidence to rebut this presumption, but it clearly appears that the husband was the active and real prosecutor. He was apparently moved by the feeling that, having recommended Hess as an honest man, he had incurred a responsibility in the premises that made it his duty to seek redress for the wrong charged in the complaint against the plaintiff, and he insisted on making his wife a party because she was owner of the property involved. It is quite evident that in the part taken by the wife, she acted in subordination to her husband. The tort in which she was engaged was in law the tort of the husband, for which he alone is answerable. Under the uncontradicted evidence, the first and second points of the defendant should have been affirmed. This view makes it unnecessary to consider the other matters assigned for error. The judgment against the defendant Victoria R. Heft is reversed.