Pa. R. Co. v. Goodenough

Citation55 N.J.L. 517,28 A. 3
PartiesPENNSYLVANIA R. CO. v. GOODENOUGH et ux.
Decision Date04 December 1893
CourtUnited States State Supreme Court (New Jersey)

(Syllabus by the Court)

Error to supreme court.

Action by William Goodenough and Sarah Goodenough, his wife, against the Pennsylvania Railroad Company, to recover for personal injuries sustained by the wife. There was judgment for plaintiffs, and defendant brings error. Reversed.

Samuel H. Grey and William S. Gummere, for plaintiff in error.

John W. Westcott and Samuel K. Robbins, for defendants in error.

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 plaintiff in error. At the trial it was urged by the defense 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. Dicey, Parties, p. 409;

1 Chit. P1. 73; Com. Dig. tit. "Baron and Feme," (V;) Schouler, Husb. & Wife, 141. Upon the rendition of judgment, the husband has the right to receive the money. Bish. Mar. Worn. § 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; South worth v. Packard, 7 Mass. 95; Anderson v. Anderson, 11 Bush, 327; Bish. Mar. Worn. § 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, Cas. 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 defense 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, (Revision, 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 Maule & S. 408: "Executors are the representatives of the temporal property,—that is, the debts and goods of the deceased,—but 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 coplaintiff, 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 & 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 covert is 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 plaintiff, William Goodenough, 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, arid 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 deduced 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 defense. 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. Comm. 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...

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6 cases
  • Knoxville Ry. & Light Co. v. Vangilder
    • United States
    • Tennessee Supreme Court
    • September 28, 1915
    ... ... negligence of the husband in such case will be attributed to ... the wife. Among these cases are the following: McFadden ... v. Santa Ana, etc., R. Co., 87 Cal. 464, 25 P. 681, 11 ... L. R. A. 252; Peck v. New York, etc., R. Co., 50 ... Conn. 379; Penn. R. R. Co. v. Goodenough, 55 N. J ... Law, 577, 28 A. 3, 22 L. R. A. 460; Gulf, etc., Co. v ... Greenlee, 62 Tex. 344; Huntoon v. Trumbull (C ... C.) 12 F. 844, 2 McCrary, 314; Morris v. Chicago, M. & St. P. R. Co. (C. C.) 26 F. 22; Yahn v ... Ottumwa, 60 Iowa, 429, 15 N.W. 257; Prideaux v ... Mineral Point, 43 ... ...
  • Patusco v. Prince Macaroni, Inc.
    • United States
    • New Jersey Supreme Court
    • November 20, 1967
    ... ... At the common law the husband controlled his wife's claim for injuries in its entirety and was entitled to receive payment. It was therefore thought just that his contributory negligence should bar her claim in all its aspects. Pennsylvania R.R. Co. v. Goodenough, 55 N.J.L. 577, 28 A. 3 (E. & A. 1893). The married women's acts were adopted to relieve women of the disabilities of coverture. With respect to tort claims, our Married Women's Act provides, N.J.S.A. 37:2--9: ... 'Any married woman may maintain an action in her own name, without joining her ... ...
  • Hudson v. Gas Consumers' Ass'n
    • United States
    • New Jersey Supreme Court
    • September 22, 1939
    ... ... 1 Chitty on Pleadings, *83, 16th Am.Ed. And the husband had the right to receive the money for damages; he could release the cause of action; and his contributory negligence would defeat such suit. See Pennsylvania R. Co. v. Goodenough, 55 N.J.L. 577, 588, 28 A. 3, 22 L.R.A. 460. But in 1906, Chap. 248, p. 525, the right of a married woman to sue in her own name, without joining her husband therein, for a tort to her person or property was established; and the non-joinder of her husband could not be pleaded to abate such action ... ...
  • Kimball v. Bauckman
    • United States
    • Maine Supreme Court
    • January 26, 1932
    ...personal injuries sustained by her to which his negligence contributed. None will dispute that." In Pennsylvania R. R. Co. v. Goodenough, 55 N. J. Law, 577, 590, 28 A. 3, 5, 22 L. R. A. 460, Judge Dixon in a dissenting opinion observes that, against a husband's claim for damages sustained b......
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