28 Mich. 440 (Mich. 1874), Michigan C. R. Co. v. Coleman

Citation:28 Mich. 440
Opinion Judge:Campbell, J.
Party Name:The Michigan Central Railroad Company v. John W. Coleman and another
Attorney:Edwards & Sherwood, D. Darwin Hughes and G. V. N. Lothrop, for plaintiff in error. Severens & Boudeman, for defendants in error.
Case Date:January 07, 1874
Court:Supreme Court of Michigan
 
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Page 440

28 Mich. 440 (Mich. 1874)

The Michigan Central Railroad Company

v.

John W. Coleman and another

Supreme Court of Michigan

January 7, 1874

Heard October 30, 1873

Error to Kalamazoo Circuit.

Action for personal injury. Defendant brings error. Reversed.

Judgment reversed, and a new trial granted.

Edwards & Sherwood, D. Darwin Hughes and G. V. N. Lothrop, for plaintiff in error.

Severens & Boudeman, for defendants in error.

OPINION

Page 441

Campbell, J.

Suit was brought and judgment recovered by defendants in error, who are husband and wife, for damages from an injury to the wife, March 15, 1868, at Dowagiac. The accident happened as she was getting upon a passenger train, which started before she was securely on board; and she fell upon a heap of iron near the track, and was thereby seriously hurt. Various questions arose upon the trial, supposed to bear more or less directly upon the relative duties and responsibilities of the parties, arising out of the circumstances. There is, however, a preliminary question of some consequence, which will first claim attention.

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Objection is made that the suit is improperly laid in the joint behalf of husband and wife. The action was begun before the decision of Berger v. Jacobs, 21 Mich., R., 215, where it was held a married woman might sue in her own name for such injuries, and it is not now insisted, therefore, that a sole action would not lie. But the question now raised is whether husband and wife may join in spite of the separate right of action.

At the common law such a grievance might give rise to a double right of action,--one to the husband, for his damages by loss of service and other incidental losses to himself, and one to the wife for her personal sufferings. It was held in Hyatt v. Adams, 16 Mich. 180, that the husband could recover nothing for the personal grievances of the wife, and the rule is equally clear that an action in right of the wife could not cover any of the peculiar damages and grievances of the husband. The grounds of relief are distinct in all respects.

The declaration in the present case is for such damages as are peculiar to the wife, and the common-law action would have been brought in the name of the husband and wife, if brought during the life-time of the husband. By our present statutes, as amended in 1857, "actions may be brought by and against a married woman in relation to her sole property, in the same manner as if she was unmarried."--2 Comp. L., § 4804. It is claimed by plaintiff in error that this provision supersedes the common law, and by the defendants that it is merely cumulative.

As a general rule the joinder of two plaintiffs in an action at law for damages involves the assertion of a joint right which would survive to the longest liver. But whether surviving or not, it indicates a proprietary right in each, but one which belongs to neither alone. The exception made in the case of husband and wife was on peculiar grounds applicable to no other class of cases. The wife could never at common law sue alone. Her chattels belonged to the husband by right of marriage, and her rights in action

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belonged to him if reduced to possession, or put in judgment during the marriage, but remained her own if she survived him. The suit being necessary to complete his right, and she having a qualified and contingent right also, which might become fixed by his death before judgment, the law allowed and required this double interest to be prosecuted in a joint action. The husband was not joined as his wife's guardian, but in his own right, as entitled to reduce the claim to possession for himself, if he could do so.

In all cases in equity in which a suit was brought to enforce a wife's separate interests, in which he had no rights, the better doctrine was that no such joinder was proper. In Wake v. Parker, 2 Keen 59, the doctrine was very fully considered, and a demurrer sustained on that ground. It was held that while the practice had been frequently resorted to, it was wrong in principle and had not been maintained when the objection was pointed out. Such a suit was held to be practically under the control of the husband, whether the wife assented to the joinder or not, as it placed her under his influence and control in regard to rights in which it should not be permitted. It was said further that a decree in such a case would not bind the wife so as to prevent her from beginning another suit on her own behalf. In Simons v. Horwood, 1 Keen 7, the master of the rolls in a similar case said "This is the husband's suit, and the wife, for all the purposes of this suit, must be taken to be under the influence of the husband." See further to the same effect.--Mole v. Smith, 1 Jac. & W., 645; Hughes v. Evans, 1 S. & S., 185; Sigel v. Phelps, 7 Sim. 239; Reeve v. Dalby, 2 S. & S., 464; Owden v. Campbell, 8 Sim. 551.

The objection is regarded as one resting on more than mere form. The law has very generally regarded the transactions of the wife jointly with the husband as quite likely to be subject to his influence, and where those have been required to be protected by a separate acknowledgment,

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the married woman's acts have not dispensed with it.--See Fisher v. Meister, 24 Mich. 447.

The statutes concerning the rights of married women are not at all uniform in different States, and it is not strange that the practice should vary under them. In New York, in Hunt v. Johnson, 19 N.Y. 279, the court referred to the code as requiring a joinder in all cases except those relating to separate property, and merely permitting and not requiring a sole action as to that, but left the point undecided because there had been an express consent to the joinder. For this same reason it was not decided whether a right of action for a tort was the wife's separate property,--a point decided in this State in Berger v. Jacobs. But in Ackley v. Tarbox, 31 N.Y. 564, the Supreme Court was held to have committed a legal error in not allowing the husband's name to be stricken out, under a provision in the code allowing such a practice as to parties who are improperly joined. In Indiana the joinder is held to be optional.--Martindale v. Tibbetts, 16 Ind. 200. In Massachusetts the common-law practice is retained.--Burns v. Lynde, 6 Allen 305. In Illinois it is declared the better practice for the wife to sue alone--Emerson v. Clayton, 32 Ill. 493. But in Burger Belsley, 45 Ill. 72, where a husband had been joined, the court recognized his right to refuse to allow the case to proceed without indemnity. These indicate that no fixed rule prevails, and that the old practice cannot be retained without creating serious difficulties.

It is impossible to consider any plaintiff in a suit at law as having no personal status in the case. Presumptively all joint plaintiffs pursue what is supposed to be a joint interest. The exception at common law in cases of husband and wife made the husband the controlling party. To make him a mere cipher in a case where he appears as plaintiff would be a departure from both common-law and equity practice. There is no sound reason for such an innovation, and it cannot fail to create serious

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controversies as to costs, and also in cases of survivorship, which ought not to be left open. We think the objection was properly raised, and that the misjoinder was fatal, inasmuch as each party might have had a separate cause of action for damages from the grievance complained of, and the husband has no interest in his wife's damages. No amendment was asked for, and it has not been made to appear how it could...

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