Fuller v. Naugatuck Railroad

Hinman, J. The defendants in this case, after verdict for the plaintiffs, move in arrest of judgment, on the ground of — 570 — the insufficiency of the declaration. The objections to the declaration are, that it does not state, that the defendants are carriers, or, that they had power, by their charter, to become common carriers; that the several counts each join a claim for damages on account of the wife's personal injury, with a claim for the expenses of her cure; that, in the two first counts, the promise is alleged to have been made to the wife, and in the third count, it is alleged to have been made to both husband and wife; that a valid promise cannot be made to a married woman, and she cannot sue in assumpsit, for any claim originating after coverture; and, lastly, it is said, the first count is in assumpsit, on the promise, and the two last counts are founded on the negligence of the defendants, and so are counts sounding in tort. These several claims will be considered in their order. First, does the declaration allege, that the defendants are common carriers, or carriers of passengers, or, that they have power, by their charter, to become carriers? We think it does. After stating that the defendants were the owners of a certain rail-road, running through the towns of Water-bury and Plymouth, and of certain cars for the conveyance of passengers upon said road, it then goes on to say, “And the defendants, on the day aforesaid, were the owners and proprietors of, and were running and propelling, a certain train of passenger cars upon said road, for the carriage and conveyance of passengers, for a certain reasonable reward paid to the defendants.” Now, a common carrier is one whose usual business it is, to carry; and the substance of these allegations is, that the defendants owned all the property and implements, usually employed by carriers of a certain description—railroad companies—and that they were, at the time, engaged in the use of this property, for the conveyance of passengers. We think this is enough, without a statement of the length of time the defendants had been engaged in the business, or any direct and positive allegation, that they were common carriers. In this respect, the counts conform to the precedents found in Chitty, or, if they differ from them, are rather more precise than those precedents. It was not necessary to allege, that the defendants had power, by their charter, to become common carriers. They are alleged to be a rail-road corporation, owning cars, and — 571 — engaged in running them on their road, for the conveyance of passengers. If this is true, it follows, that, so far as third persons are concerned, they must be presumed to have authority to do the business they hold themselves out as competent to do. They will not be presumed to be engaged in an unlawful business; and, being engaged in this business, and, in its pursuit, having made with the plaintiffs the contract declared on, they ought not now to be heard to they had no power to do so. 2. It is claimed, that the declaration asks for damages on account of the wife’s personal injury, and also for the expenses of her cure. Each of the counts, after stating the wife’s personal injury, and the extent of it, then goes on to say, that, by means of the injury, she became sick, was prevented from attending to her necessary affairs, “and also thereby, they, the said plaintiffs, were forced and obliged to, and did, necessarily pay, lay out, and expend, a large sum of money, to wit, the sum of two hundred dollars, in and about endeavouring to be cured of the bruises, &c.” It is clear, that the plaintiffs could not recover for the wife’s personal injury, and also for the expenses of her cure, in the same action. On the former ground of damages, the husband would have no interest, while the latter, would accrue to him alone; and so the two claims would be incompatible with each other. But we do not think this declaration open to that objection. Indeed, it may fairly be doubted, whether it was framed with that object in view. The ground of the action was the wife’s personal injury alone: otherwise, she could not have been made a party at all; and, we think, the statement in regard to the expenses of her cure, may well enough be considered as descriptive of the extent of her injury, rather than as a distinct and substantive ground of damages—as saying, in substance, that she was so hurt, that it had already cost two hundred dollars to cure her. In this aspect, the allegation, though unnecessary, is still very proper. But suppose the pleader intended it, as a distinct ground of recovery, and that it is so expressed as to bear that construction only, still we think it clear, that it does not vitiate the declaration. In every instance, this claim is inserted as — 572 — matter of aggravation, and not, as of itself, constituting a ground of recovery. The gist of the action is the breach of contract in not carrying the wife safely. It is stated, as one consequence of that, that the plaintiffs were obliged to expend money in paying for medical attendance. For that the plaintiffs cannot recover ; and if that was the sole ground of damages, it would be fatal to their case. But as there was a ground of damages for which they could recover, it will be presumed, that the court allowed no proof to be given of any ground on which they could not, although stated in the declaration. 3. It is said, there is a misjoinder of counts in the declaration; the promise in the two first counts being laid as made to the wife, and in the third, as made to the plaintiffs. It is true, the third count uses the plural word “plaintiff's,” when stating the person to whom the promise was made; but it is preceded and followed by language which shows, that the wife only was meant. Immediately preceding the allegation of the promise, it is stated, that “in consideration that the said Betsey Fuller, at the special instance and request of the defendants, had then and there engaged a seat and place, by a certain other car, to be carried and conveyed thereby to Plymouth aforesaid, for certain other reasonable hire and reward to the said defendants in that behalf paid and received, they, the said defendants, then and there undertook,” &c., that due and proper care should be observed in and about the carrying, conveying, and delivering her the said Betsey, as such passenger as aforesaid;" and then it goes on to say, that the said Betsey, confiding in said promise, became such passenger. It was, then, the wife that engaged the seat, and paid for her passage; and it was for her benefit that the promise was made. We think, therefore, the fair reading of the count is, that the promise was made to her, although its language, if not restrained by the whole frame of the count, would include both plaintiffs. 4. It is claimed, that a married woman cannot sue in assumpsit, on a contract made subsequent to the coverture; on the ground, that all choses in action accruing to her, vest, absolutely, in the husband; and, under some of our decisions, this is the most material question in the case. It is said, the husband paid for her passage, and therefore, the prom — 573 — ise must be presumed to have been made to him. This is contrary to the express allegation in the declaration, in which it is explicitly alleged, that she paid for her passage. But then it is insisted, that as husband and wife are one person in law, the money that she actually paid, must be presumed to have been his, and so the consideration of the promise moved from him. As a wife, however, may have separate estate, over which the husband can have no controul; and may make contracts, which will bind her estate only, and not the husband’s, it is obvious, that her paying money out of such separate estate could raise no promise in the husband’s favour, founded upon the idea, that the consideration moved from him. As then, the money which she paid on this occasion, might have been her separate property, we should be bound, after verdict, on a declaration, alleging that she paid the consideration for the promise, and that the promise was made to her, for her benefit, to presume the facts to be as alleged, if it were necessary to do so, in order to sustain the verdict. But we do not place the case on this narrow ground; for although there are expressions used by our judges, in some cases, which seem to sanction the notion, that all choses in action accruing to the wife during coverture, vest absolutely in the husband; yet the cases in which this point is supposed to have been decided, are all of them distinguishable from this case. None of them arose on promises or obligations relating to the wife’s personal security. They were all mere money claims, for liquidated debts; and some of them were cases where the contest was between the wife, or her representatives, and the husband’s creditors. Indeed, it is not improbable, that the inclination our courts have always felt, to subject all a debtor’s property to the payment of his debts, and to guard against any possible evasion of this liability, may have led to our peculiar decisions on this point. However this may be, the principle, which our courts have established on this subject, is undoubtedly a departure from the common law, and ought not to be extended so as to operate unjustly. The rule of law is, that in all cases where the cause of action will survive to the wife, she may join with her husband in a suit upon it. This rule has not been affected by the cases to which we refer. Its application has been narrowed, by leaving the cases in — 574 — which the cause of action will survive less in number, but the rule remains as before. If, then, the cause of action would survive to the wife, in this case, it must follow, that she may join her husband in a suit upon it. Now, the defendants admit, that an action on the case, for their neglect of duty, in not carrying the woman safely, might be sustained by her. The question, then, is narrowed down to this—whether our decisions have so far destroyed the identity of the wife, as that a binding promise cannot be made to her for any purpose—not even for her personal security. Now, whatever may be said of the result to which the reasoning of some of our judges leads, we have no idea, that they intended to sanction any such doctrine. The truth seems to be, that our late cases on this subject, rest on the authority of Griswold v. Penniman, 2 Conn. R. 564; and that case rests upon the notion, that, because a husband may sue alone, on most choses in action, accruing to the wife during coverture, they vest absolutely in him. This, says Judge Swift, “clearly proves, that they vest in him absolutely.” Previous to the case of Griswold v. Penniman, our court of errors had decided, that an agreement between husband and wife was absolutely void, unless it was made through the intervention of a trustee. Hutton v. Dibble, 1 Day, 221. Nichols v. Palmer, 5 Day, 47. This doctrine, carried out, would, perhaps, sustain the case of Griswold v. Penniman. The common law doctrine, that a husband may sue alone, or join his wife, on choses in action, accruing to her, during coverture, is founded upon the principle, that he has his election not to reduce such choses in action to possession; and the courts, at that day, might have considered such an election, to be a void agreement, under the case of Dibble v. Hutton. However this may be, it is clear, that Judge Swift’s principle does not apply to a case like this. The converse of the ground of that decision is true here. For the personal injury of the wife, the husband never could sue alone. He has no direct interest in that—none whatever, unless in consequence of it, he loses her society and service. For that he might sue; but not for the pain she suffers. If, then, it is true, that his right to sue alone, proves, that certain choses in action vest — 575 — absolutely in him, it must follow, that in cases where he has no such right, they do not vest in him; and this being a case of this description, it must follow, that the suit was correctly brought in the name of the wife. _The point stated in the motion, that the first count was laid in assumpsit, and the other counts in tort, has not been insisted upon in argument. We presume it was intentionally abandoned; as the counts all seem to have been taken from established precedents in Chitty, of forms given under the head of assumpsit. Under the motion for a new trial, it is claimed, that the judge erred, in admitting evidence to prove, that the wife gave money to a witness to buy a ticket for her passage in the cars; that such a ticket was procured, which she took, and also took her seat in the cars, to be conveyed to Plymouth. It is said, this evidence went to prove, that the contract was made with the husband; on the ground, that the money she paid for the ticket, must be presumed to have been his. This might be a plausible claim, if it was not possible for a married woman to have separate property; but as she may have such property, it is obvious, the money might have belonged to either of them, and there might have been other evidence, showing to which it did in fact belong. The objection is, that it did not conduce to prove the contract. We think it did; whether it was sufficient for the purpose, we are not called upon to decide. Again it is said, that no express contract was made with any one; and that the law will imply a contract only with the husband, because he paid for the ticket. We have already seen, that it does not appear who paid for the ticket, unless the fact, that the money came from her hand, is presumptive evidence, that it belonged to her. We do not think there is any presumption that it was his alone. Besides, it does not appear, whether the promise was expressed or implied. The motion does not profess to report the whole evidence in the case; and so far from presuming the contract was an implied one, we should be bound, rather, to presume that it was express, if it were necessary to do so, in order to sustain the verdict. These reasons are sufficient to dispose of this claim; but it ought not to be understood, that we intend to sanction the notion, that the law will imply a con — 576 — tract only with the party who pays the money, in such a case as this. It would seem more reasonable to suppose, that the implied contract, whatever it might be, would be with the party in interest in it. If it was a contract to pay for the wife’s labour, it would generally be to the husband, because he alone is interested in it; but if for her personal security, it must be to her, if any one, because he has no interest in that. But it is not necessary to pursue the subject further. The injury for which the action was brought, occurred at the station, or usual stopping place, at Plymouth; and the plaintiffs claimed, it was in consequence of the cars not stopping the usual time, or long enough to give the passengers for that place a reasonable opportunity to leave. Under this claim, the plaintiffs gave evidence of the usual and customary period of the cars stopping at that place; and it was claimed, that such evidence was irrelevant, and ought not to have been received. We think it was proper, for the purpose of showing what the defendants had considered a reasonable time, to be allowed the passengers to leave, at that station; and, if the time allowed for that purpose, on this occasion, was shorter than the usual and customary time, it would tend somewhat to show, that a reasonable, time was not allowed. The evidence probably was not very important; but we cannot say, that it was improper. The remaining question arises upon the charge of the court. It is said, that it requires too high a degree of care in the defendants. But the rule laid down by the judge, was the one adopted by this court, in Hall v. The Connecticut River Steamboat Company, 13 Conn. R. 319; and has been acted upon ever since. It is too well settled to require reexamination. Upon the whole case, then, the motion in arrest is advised to be overruled, and no new trial is advised. In this opinion the other judges concurred, except Waite, J., who was disqualified under the statute of 1852, c. 24. § 4. Motion in arrest overruled; New trial denied.