THE PENNSYLVANIA RAILROAD COMPANY, PLAINTIFF IN ERROR, v. WILLIAM GOODENOUGH ET UX., DEFENDANTS IN ERROR

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 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 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, 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.

Dixon, J.

(dissenting). The plaintiffs, William Good-enough and Sarah, his wife, were riding along a public street across the railroad of the defendant, in a wagon drawn by a horse which was driven by the husband, when a collision between the vehicle and a train of the defendant occurred, and the wife received severe bodily injury. This suit was brought to recover compensation for the injury thus suffered by the wife, and a verdict was obtained assessing her damages at $2,700, upon which a judgment was rendered that she recover that sum against the defendant. On writ of error to review this judgment, the only serious question presented on the record is whether the trial justice erred in charging the jury that, unless the husband was acting as agent of the wife, his negligence was not imputable to her. It is insisted by the defendant that such negligence should be so imputed, because of the marriage relation and the legal necessity therefrom arising of joining the husband as a plaintiff in the suit. The argument rests upon the premise that the husband has a legal interest in the cause of action, and in whatever compensation may be recovered, and thence is deducted the conclusion that the husband’s contributory negligence must preclude any recovery.

I deny the premise.

It must, of course, be remembered that we are not dealing with the damages which a husband sustains by the physical injury of his wife, such as the expenses of her cure and the loss of her service and society. These must be sued for by the husband alone (except as our statute permits them to be joined with such a cause of action as is now before us). Against the husband’s claim for those damages no doubt his contributory negligence would be a defence. But the cause of action now under consideration is the direct injury to the wife’s person and the loss which she as an individual thereby suffers. In such a cause of action, and in any recovery at law thereupon, the husband, I think, has no legal interest.

It may be assumed that such a cause of action, before it is merged in a judgment, does not come within the legal notion of “ property.” In Blackstone’s classification of the various kinds of property (2 Bl. Com. *438), he ranges damages for injury sustained as property acquired and lost by suit and judgment at law, saying that, although the injured party has a right to damages the instant he receives the injury, and this right is given by the law of nature, yet a judgment is necessary to convert this right into “property.” So far as this classification excludes from the legal definition of property a right to damages for an injury to property, it has been criticised, but with regard to an injury to the person it seems to be generally accepted as correct.

Assuming its correctness, our Married Women’s acts, which relate to a wife’s property only, do not affect the right to these damages before judgment, and therefore we must consider whether the husband had a legal interest in such damages at common law.

It must be admitted that the husband was a necessary party to be joined with his wife in a suit for the recovery of such damages. But this was not because of his legal interest in the damages. He was a necessary co-plaintiff with his wife in all suits at law for the vindication of her rights. Even when he had relinquished his power over his wife’s rights, he was so joined. Innell v. Newman, 4 B. & Ald. 419. And after our statute had terminated the husband’s interest in his wife’s property, but before the later statute, authorizing a married woman to sue alone for her property, it was necessary that her husband should be joined as a co-plaintiff. So that the necessity of joining him in the suit is not indicative of any legal interest in the cause of action. As is frequently stated in the books, he is joined for the sake of conformity.

It may also be admitted that, unless he had surrendered his power, the husband could settle for the damages or could release the wrongdoer from responsibility to the wife. Southard v. Packard, 7 Mass. 95; Anderson v. Anderson, 11 Bush 327; Beach v. Beach, 2 Hill 260; Ballard v. Russell, 33 Me. 196. This, however, arose not from the theory that the damages belonged to the husband, but from the power which he had over all rights of action belonging to his wife. He could make them his by reducing them to his own possession. Settling for the damages was so reducing them, and releasing the wrongdoer was deemed equivalent to settlement. The distinction between a husband’s power over his wife’s rights in action, and a legal interest in them, forms the basis of decision in Stall v. Fulton, 1 Vroom 430, and Peterson v. Mulford, 7 Id. 481, where it was held that the husband’s creditors had no claim on such rights of the wife, unless the husband had chosen” to exercise his power over them so as to make them his own. If, without the exercise of such power, those rights were the property of the husband, the claims of his creditors could not have been denied.

Having thus noticed those rules of the common law which might seem to favor the contention of the defendant, and having shown that they presuppose nothing antagonistic to the dictate of nature that compensation for a personal injury should belong to the person injured, it must further be noticed that there are rules of the common law which clearly recognize this natural claim as legally subsisting in the case of married women.

In an action for a battery or other personal tort done to the wife, the wife must join. Bac. Abr., tit. “Baron and Feme,” p. 306. She must join because she is the meritorious cause of action, the husband joining for conformity only. Dengate et ux. v. Gardiner, 4 Mees. & W. 6. If the husband dies before or pending the suit, the right of action survives to the wife. Bac. Abr., tit. “Baron and Feme,” p. 304. But if the wife dies before or pending suit, the right of action is extinguished. Id., p. 306 ; Stroop et ux. v. Swarts, 12 Serg. & R. 76.

In view of the common law maxim, “Actio personalis moritur cum persona,” these rules plainly indicate to whom the right of action belongs. Because it survives the husband, it is not his: it dies with the wife because it is hers.

I conclude, then, that at common law the husband has no legal interest in the right or cause of action which accrues to a married woman for a tort to her person. He has some power over it but no legal interest in it.

I have said that our Married Women’s acts do not seem to affect this right of action; yet it would be entirely in accord with the spirit of those laws if, by judicial construction, their terms were made to embrace it. That the legislature should have placed all a wife’s real and personal property, and the rents, issues and profits thereof, beyond her hnsband’s power of disposal, and made them her sole and separate property, as though she were a single woman, and should have left this most intimate right, which concerns her very existence, unsecured to her, can be reasonably accounted for only on the ground of inadvertence.

But the defendant’s argument is rested, also, upon the supposition that the husband has a legal interest in the compensation recovered in a suit for his wife’s personal injury. This support, likewise, in my opinion, fails.

When a recovery has taken place — when the cause of action has become merged in a judgment — then I think our Married Women’s acts become operative upon it. As already stated, the judgment is property, and all property received or obtained by a married woman, in any manner whatsoever, belongs, by force of the statute, to her alone, as if she were a single woman. It may be suggested that the judgment being recovered by the husband and wife together, the property is not received or obtained by the wife, within the meaning of the statute. The same thing might be urged with respect to a chattel given by a third person to the wife, but delivered to the husband for her. At common law, it would have been absolutely his; but now, I presume, he would be deemed a mere agent in the transaction, and the chattel would be hers. Similarly, in this case, the "husband appears with his wife in obtaining the property, but it is obtained on her account and for her, and, within any just view of the statute, it is obtained by her and not by her husband.

Eeason seems, therefore, to lead to the conclusion that the husband, has no legal interest in such a judgment as is now before us.

Turning to previous judicial decisions, they appear to tend in the direction above pointed out. Counsel for the defendant relies upon Carlisle v. Sheldon, 38 Vt. 440; Peck v. New York and New Haven Railroad Co., 50 Conn. 379; City of Joliet v. Seward, 86 Ill. 402, and Yahn v. City of Ottumwa, 60 Iowa 429. While in these cases it was said that the negligence of a husband driving would be imputed to the wife riding with him, yet in every case the imputability was placed, not on the relation of husband and wife, but on that of driver and passenger. This will be seen by a quotation from the opinion in Carlisle v. Sheldon, which is the only ease of husband and wife cited in the other decisions. The Vermont court said: “ The wife stands in no different position from that which she would occupy if the driver of the vehicle in which she was carried had been, instead of her husband, one employed for that purpose. * * * If she had been a passenger in a stage coach on this occasion, and had received the same injury, * * * the driver would be treated as being her agent. * * * There is nothing in the marital relation which would change the situation of the wife in respect to her husbands negligence under such circumstances, for the same consequences would have followed if the relation, instead of being that of husband and wife, had been that of parent and child, or master and servant, or if she had been an entire stranger.” This is substantially the doctrine of Thorogood v. Bryan, 8 C. B. 114, and if that doctrine had been repudiated in Vermont, as it has been in New Jersey (New York, Lake Erie and Western Railroad Co. v. Steinbrenner, 18 Vroom 161), it may fairly be inferred from the language above quoted that Carlisle v, Sheldon and the cases following it would have been decided differently.

I have found only two cases where the decision rested on the mere relation between husband and wife, ánd only one of these is directly on the point presented by the case in hand j both, however, tend to corroborate the opinion which I have formed.

In Everts v. Everts, 3 Mich. 580, it was held, in an action by husband and wife for an assault upon the wife, that no act or words of the husband, unless the wife was privy to or participant in them, could be proved in mitigation of damages.

In Hoag, Administratrix, v. New York Central and Hudson River Railroad Co., 111 N. Y. 199, an action by an administrator of a married woman to recover damages for her death caused by the negligence of the defendant, it was adjudged that the contributory negligence of the husband, in carelessly driving across the railroad track, whereby his wife, a passenger in his vehicle, was killed, was not imputable to the wife, and so did not bar the suit of her administrator. Yet, under the New York statute, as under ours, what would have defeated the action of the injured person in case death had not ensued, would defeat the action of the administrator.

Both upon reason and authority, then, I think the jury, in the trial of this case, were properly instructed that the contributory negligence of the husband constituted no defence.

The judgment below should be affirmed.

For affirmance — Abbett, Dixon, Brown. 3.

For reversal — The Chancellob, Chief Justice, Depue, Lippincott, Mague, Eeed, Van Syckel, Bogert, Clement, Smith. 10.