McKinney v. Western Stage Co.

Wright, C. J. Several errors are assigned, which are not urged in tbe argument. We shall content ourselves [423] ■with disposing of those thus urged. They are, first, that the court erred in dismissing the writ of error; and second, in rendering a judgment in favor of Solomon McKinney, for injuries to the person of his wife, without her being joined in the action. So far as the writ of error sought to have the court investigate any error'in fact committed by the arbitrators, it was clearly not the proper remedy. Their award was not a judgment of the District Court; and it is only an error in fact committed by that court, in its own judgments, that can be reviewed by this writ. Code, chapter 112. The office of this writ is to correct .a material error in fact, committed before or in the presence of us, and not before you ; or an error committed by the court or tribunal from which the writ issues, and not by one to which it issues. And in so far as this writ sought to correct the alleged error committed by the clerk, in entering judgment on the award in vacation, one sufficient reason why defendants cannot now complain of the action of the court below, is, that said judgment was set aside, and the whole matter heard, as if no such judgment had been entered. All possible prejudice resulting from such assumed irregularity, has been thus obviated, and the defendants are, therefore, in no situation to complain of such action -of the clerk. Should the wife of McKinney have been joined in this action, is the second and only remaining question presented in the argument of appellants. The agreement shows that the parties submitted to the arbitrament of three persons, the following matters: first, was any damage done to plaintiff, by reason of the upsetting of the coach or wagon of defendants; second, are defendants liable for such damage, and if so, in what amount. We suppose that at common law, the rule is well settled, that for an injury to the person of the wife during coverture, by battery, or to her character, by slander, or for any such injury, the wife must join with the husband in the suit. When, however, the injury is such that the husband receives a separate loss or damage, as if in consequence of the battery, [424] he has been deprived of her society, or been put to expertse, he may bring a separate action in his own name. Barnes and Wife v. Hurd, 11 Mass. 59 ; Lewis and Wife v, Babcock, 18 Johns. 443 ; 2 Saunders P. & Ev. 568. And this rule we do not understand to be changed by the Code. It therefore follows, that in the case before us, the husband might maintain his sepárate action for any loss sustained by him in consequence of being deprived of the society of the wife, or being put to expense on account of the injury so received. Such damages could be legitimately considered by the arbitrators under the terms of the submission. We will not presume, that they took into consideration, matters for which they should both have sued. On the contrary, we will presume in favor of the regularity of their proceedings, and that they only considered those matters for which the husband could sue in his own name. Judgment affirmed.