Meese v. City of Fond du Lac

TayloR, J. The learned counsel for the appellant contends — 327 — that chapter 96, Laws of 1873, now section 2680, E. S. 1878, is mandatory, and if the husband brings an action jointly with his wife to recover damages for an injury sustained by the wife, he must in such action claim his damages for loss of service of the wife, and his expenses for medical attendance, if he désires to recover damages on that account, or be>barred from recovering the same; that he cannot maintain a separate action in his own name to recover for loss of service, etc., and at the same time maintain a joint action in the name of himself and wife for injuries to the wife, when both actions are founded upon the same negligent act or acts of the defendant. As the damages in both cases, when recovered, belong to the husband, there is great force in the argument of the learned counsel, that since the statute has removed the technical objection which at common law prevented the joinder of the two causes of action in one suit, the court should construe this law as mandatory, and not permit the husband in such case to divide his causes of action, and thereby subject the defendant to the cost and expense of two defenses instead of one; that the act, being a remedial act, should be liberally construed to effect the purpose of its enactment, to wit, “ to prevent a multiplicity of actions upon the same cause,” as specified in the title thereof. As we are of the opinion that the evidence in the case shows that no other action was pending at the time the present one was commenced, it is unnecessary to determine the question whether a judgment in a joint action by the husband and wife, to recover damages for her personal, injuries only, would' be á bar to a subsequent action by the husband for loss of service, etc., arising out of the same negligence or default of the defendant, or whether the actual pendency of such joint action would be a good plea in abatement to such subsequent separate action by the husband. It is conceded by the counsel for the respective parties, that the joint action by the husband and wife to recover damage for the personal injuries to the wife abated with her death. — 328 — Sncli action abated at common law, and it is not saved to the husband by our statute. See section 4253; Woodward v. Hallway Co., 23 Wis., 400, 405-6; Schouler’s Domestic Relations, 107-108; Purple v. Railroad Co., 4 Duer, 74; Hodgman v. Railroad Corp., 7 How. Pr., 492; Butler v. Railroad Co., 22 Barb., 110; Meech v. Stoner, 19 N. Y., 26. It is clear, therefore, that the action brought by the plaintiff and his wife, in which the only damages claimed were damages for personal injuries to the wife, abated absolutely at the death of the wife, and could not be prosecuted further by the husband. But it is urged by the learned counsel for the appellant, that the husband, notwithstanding the death of the wife, might in that action be permitted to amend his complaint, even after her death, so as to claim damages for loss of services, etc., and in that way continue such action against the defendant. It is, perhaps, a sufficient answer to this argument, that the plaintiff does not choose to amend the complain tin that action for that purpose, but chooses rather to permit it to remain abated and commence a ,new action for the recovery of such damages, as he has in this case. The first action, having abated absolutely as to the cause of action set forth in the complaint,,is no more a pending action than though the plaintiff had voluntarily dismissed such action, or suffered a nonsuit; in either of which events the commencement of the former suit would not bar the present action, nor could it be pleaded in abatement as a former suit pending. It is also urged by the learned counsel for the appellant, that the death of the wife does not of itself abate the action, but in order to get the cause out of court some further action or suggestion must be made therein by the husband or by the defendant. We are at a loss to see what action the husband could take in that case after the death of his wife. The fact of her death takes away all right of the husband to prosecute the same further. It is probable that, upon the sugges — 329 — tion of the death by the defendant, the court might enter a formal order declaring the action abated, or the same entry might be made on the suggestion of the husband,. Such entry would, however, be nothing more than evidence of the fact that the action had abated, and not the abatement thereof. The abatement takes place by the death of the wife, and not by virtue of the record which evidences such death. We think the evidence in this record fails to show that there was a former suit pending by the husband and wife, or either of them, at the time of the commencement of this action, and that the court decided rightly in refusing to dismiss the plaintiff’s action for that reason. The counsel for the appellant alleges as error, that the damages allowed for the loss of service of the wife are excessive. Upon this question the evidence was not, perhaps, of the most satisfactory nature; but there was certainly some evidence to sustain the amount of damages given by the jury. Although the evidence showed that for some years before the accident the plaintiff’s wife had been an invalid, still the testimony of her physicians and others who knew her showed that her health at the time the accident occurred was improving, and strongly tended to show that the probabilities were that, had it not been for the injury then received, she would' have been able in a short time to discharge the most important duties of a wife in her family. Upon this point the evidence was fairly submitted to the jury, and this court cannot say, from an inspection of the record, that they were not justified in assessing the damages at the sum fixed by them. It is also insisted by the appellant, that the court erred in refusing to submit to the jury, as a part of the special verdict, the following question: “What, if anything, was the value of her services per month during the two years she had been an invalid next prior to the accident?” We are unable to see how an answer to this question would have enlightened the court as to the probable value of her services thereafter — 330 — Rad not the accident happened. The evidence showed that during these past two years she had been, most of the time, an invalid; but, if we are to place any confidence in the testimony of her physician, she had been gradually recovering during this period, and the indications were that she would soon recover her health and strength. Evidence of the value of the services of a person during the period of a long and prostrating sickness would not tend to enlighten either the court or j ury as to what such person’s services would be worth for a like period of time on the hypothesis that he had recovered from such sickness. In this case the jury undoubtedly assessed the value of her service upon the theory that the evidence tended strongly to show that but for the accident she would have regained her health; and, as there was some evidence to support this theory, the finding upon that question is conclusive. ’ The objection that the question whether the negligence of the wife contributed to the accident, was not fairly submitted to the jury, we think is unfounded. Py an examination of the questions submitted to the jury, it will be seen that the jury found that the defect in the bridge which occasioned the accident was not easily seen; that the defect had existed for five days; that the proper city officer had notice of the defect before the accident, and took no means to warn the public of the same; that the vehicle in which the plaintiffs wife was riding was a safe and proper one; that the horse was gentle, and driven by a boy fifteen years old, and she was in the exercise of ordinary care in being in and riding in the carriage in its then condition, with the number of passengers and with the boy driver, under the circumstances proven in the case. We think these findings fairly exculpate the plaintiff’s wife from the guilt of contributory negligence, especially as the record does not contain any evidence tending to prove that either she or the boy driver were in any way negligent at the time the accident occurred. — 331 — After a careful examination of tbe record, we are unable to discover any error wbicb would justify tbis court in reversing tbe judgment appealed from. By the Court. — Tbe judgment of tbe circuit court is affirmed.