Pennsylvania Railroad v. Goodenough

The opinion of the court was delivered by Reed, J. This action was brought by a husband and his wife to recover for an injury to the wife, caused by a collision between the wagon in which they were driving and a train on the railroad of the plaintiffs in error. At the trial it was urged by the defence that the husband, who was driving, was negligent, and that his negligence contributed to the wife’s injury. The trial justice, however, charged that the negligence of the husband could not be imputed to the wife. This is assigned for error. To ascertain how far the conduct of the husband affects the right to recover in an action of this kind, it is essential that the posture of the husband in relation to the suit shall be ascertained. If he is a party interested in the subject-matter of the action, then it follows that he cannot be permitted to recover when his negligent conduct contributed to the creation of the cause of the action. The rule at common law is entirely settled that for a tort to the wife, either ante or post-nuptial, the husband must be [588] joined with the wife in an action. Dic. Part.; 1 Chit. Pl. 73; Com. Dig., tit. “Baron and Feme,” V.; Shoul. H. & W. 141. Upon the rendition of judgment, the husband has the right to receive the money. Bish. Mar. W., § 913. So completely is the husband identified with the prosecution of the action that he can release the cause of action. Beach v. Beach, 2 Hill 260; Ballard v. Russell, 33 Me. 196; Southworth v. Packard, 7 Mass. 95; Anderson v. Anderson, 11 Bush 327; Bish. Mar. W., § 912. If the wrong to the wife is inflicted through the connivance of the husband, his conduct is an answer to the action, although he may press the suit. Tibbs v. Brown, 2 Grant 39. So, his power over the action and the effect of his conduct upon the result are entirely settled at common law. There can be no doubt that if his negligence assisted to create the cause of action, it would, at common law, be a complete defence to the action. Has this been changed by any legislation in this state ? I think it quite clear that it has not. On referring to the act relating to the property of married women (Rev., p. 636), we find that the real and personal property of every married woman, and the rents, issues and profits thereof, shall be her sole and separate property. Personal torts do not create rights of property. The right to sue for such is not assignable. They do not survive the death of the injured person, because, in the language of Lord Ellenborough, in Chamberlain v. Williamson, 2 Mau. & Sel. 408, “executors are the representatives of the temporal property — that is, the debts and goods of the deceased — Tut not of their wrongs, except where those wrongs operate to the temporal injury of the personal estate.” The language of the section itself is inapplicable to a right to sue for a tort, for no rent, issue or profit, in the sense of the statute, can arise out of a tort. Section 11 of the act provides that she may maintain an action in her own name and without joining her husband therein, for all breaches of contract or for the recovery of all [589] debts, wages, earnings, money and all property which, by this act, is declared to be her separate property, and she shall have in her own name the same remedies for the recovery and protection of such property as if she were an unmarried woman. If a right to sue for a tort is property, then, by force of this section, the husband was an unnecessary party to this action. Yet, section 22 of the Practice act obviously refers to this class of personal torts, in an action for which both must join. This section provides that in any action by a husband and wife for an injury to the wife, in respect of which she is necessarily joined as co-plaintiff, it shall be lawful for the husband to add thereto claims in his own right arising ex delicto. This is a copy of section 40 of the Common Law Procedure act of 1852 (15 and 16 Vict., c. 76), which undoubtedly refers to personal injuries to the wife, in actions to recover damages for which husband and wife must sue jointly. If any doubt remained in respect to the general rule in this state that the husband must join with the -wife in actions for personal injuries to the wife, it would be dissipated by section 24 of the Practice act, which states the exception to the rule in such terms as to show the existence of the rule itself. This section provides thus: “Any married woman, being in a state of separation from her husband, may bring suit in her own name for the recovery of damages for any injury done to her person or reputation; and it shall not be lawful for the husband of such married woman to control, discontinue, release or in any way interfere with such action; but the same shall proceed and be under the control and direction of said married woman, as if she were a feme sole.” So, it is perceived that in all instances except when the feme covmi, is still living in a state of separation from her husband, he retains his common law power of control over and interest in the action. The husband has not a mere power to sue for the wife, but he has a power coupled with an interest in the suit. Retaining this control over the suit and this right to release, [590] and consequently to compromise it for money, he cannot be permitted to create the cause of action by his negligent or fraudulent conduct and then reap the benefit which this interest in the action confers. We think the charge in this respect was erroneous and the judgment must be reversed.