21 Wis. 305 (Wis. 1867), Whiton v. The Chicago & North Western Railway Co.

Citation:21 Wis. 305
Opinion Judge:LUTHER S. DIXON, C. J.
Attorney:Conger & Hawes, for appellant, Pease & Ruger, for respondent,
Court:Supreme Court of Wisconsin

Page 305

21 Wis. 305 (Wis. 1867)

WHITON, Adm'r etc.,



Supreme Court of Wisconsin

January, 1867

Page 306

[Syllabus Material]

Page 307

APPEAL from the Circuit Court for Rock County.

Action under the statute (secs. 12, 13, ch. 135, R. S.), to recover for injuries done to plaintiff's intestate (who was his wife), resulting in her death. Demurrer, on the grounds, 1. That plaintiff has not legal capacity to bring the action, it being one which his intestate could not bring, if living. 2. That the husband, as such, is the sole party in interest, and should bring the action in his own name. 3. That the complaint does not state a cause of action. The plaintiff appealed from an order sustaining the demurrer.

Reversed and remanded.

Conger & Hawes, for appellant, as to the rules by which the statute should be construed, cited 1 Kent's Com., 461, 462, 465; Sedgw. on Stat. Law, 41, 237, 258; 1 Blacks. Com., 86-7; Smith's Com., § 547; People v. N. Y. Cent. R. R. Co., 3 Kern. 80, 81, and 25 Barb. 199; Watervliet T. Co. v. McKean, 6 Hill 620; Whitney v. Whitney, 14 Mass. 92; Inhabitants of Somerset v. Dighton, 12 id. 384; Tonnele v. Hall, 4 Coms. 144; Van Hook v. Whitlock, 2 Edw. Ch., 310; Dresser v. Brooks, 3 Barb. 450; Mason v. Finch, 2 Scam. 223; Donaldson v. Wood, 22 Wend. 397. They also compared the N. Y. statute (Laws of N. Y., 1847, ch. 450; id. 1849, ch. 256), and the English statutes on the same subject (9th and 10th Victoria), upon which ours was framed (Safford v. Drew, 3 Duer 636; Tilley v. Hudson River R. R. Co., 24 N. Y., 471, 480); and cited Cotton v. Wood, 98 Eng. C. L., 566; Chapman v. Rothwell, 96 id. 168; Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y., 310; Quin v. Moore, 15 id. 432; Green v. Hudson River R. R. Co., 16 How. Pr. R., 263; S. C., 31 Barb. 260, and 32 id. 25; Tilley v. Hudson River R. R. Co., 24 N. Y., 471, and 29 id. 252; Dickens v. N. Y. Cent. R. R. Co., 23 N. Y., 158, and 28 Barb. 41. The language of sec. 12 does not require that the person injured must have been able (if death had not ensued) to maintain the action in her own name; but it is sufficient that she is the meritorious cause of action. Though the law would not allow a married woman so injured to sue alone during coverture, she would be the real party in interest; and in the event of the death of the husband, the damages and the cause of action would...

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