Berger v. Jacobs

• Decision Date: 12 July 1870
• Citation: 21 Mich. 215
• Court: Michigan Supreme Court
• Parties: Amelia Berger v. John C. Jacobs

21 Mich. 215

Amelia Berger v. John C. Jacobs

Supreme Court of Michigan

July 12, 1870

Heard July 7, 1870 [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action on the case brought by Amelia Berger in the circuit court for the county of Wayne against John C. Jacobs for an assault and battery committed by the defendant upon the person of the plaintiff, who was, at the time the cause of action arose, and so continued to be up to the time of the commencement of the action, a married woman. The defendant pleaded the general issue.

On the trial, the question, which is brought into this court for review, was raised by the request of the defendant to the court to instruct the jury that the plaintiff, being a married woman, could not maintain this action without joining her husband as co-plaintiff. The circuit judge so charged; to which the plaintiff excepted. A verdict was taken for the defendant, and the judgment entered thereon is brought into this court by writ of error.

Judgment reversed with costs, and a new trial awarded.

S Larned and F. A. Baker, for plaintiff in error:

I. When a feme covert in an action ex delicto has no interest whatever in the subject matter of the action, and consequently ought not to be made a party, and she sues either with or without her husband, the defendant will obtain a nonsuit on the trial. But when the feme was legally interested before or during her coverture, in the subject matter of the action, and might properly join with her husband, but sues alone, her coverture can only be pleaded in abatement, and cannot be given in evidence under the general issue: 1 Chitty on Pleadings, 75, 449; Coan v. Bowles, Carthew, 123; Milner v. Milner, 3 T. R., 627; Bates v. Stevens, 4 Vt. 545. In the case at bar, the legal interest in the damages sought to be recovered was in the plaintiff--the only objection to her suing alone being that she was under a disability: Everts v. Everts, 3 Mich. 580.

But even if the husband had been jointly interested with his wife in the subject matter of the action, still the ruling of the court below was erroneous, for it is well settled that in actions ex delicto, and which are not for the breach of a contract, if a party who ought to join be omitted, the objection can only be taken by plea in abatement, or by way of apportionment of the damages on trial; and the defendant cannot, as in actions in form ex contractu, give in evidence the non-joinder, as a ground of nonsuit, under the plea of the general issue: 1 Chitty on Pleadings, 66; Frazier v. Spear, 2 Bibb 385; Gilbert v. Dickerson, 7 Wend. 449; Pickering v. Pickering, 11 N. H., 141. But in actions ex contractu, as well as in actions ex delicto, the only consequences of a mistake in the proper parties in the case of baron and feme, are, that when a married woman might or should be joined in the action with her husband, but sues alone, the objection can only be pleaded in abatement: 1 Chitty on Pleadings, 33; Newton v. Robinson, 1 Taylor (N. C.), 72; Morgan v. Painter, 6 T. R., 265.

II. We have seen that even at common law the ruling of the circuit judge was erroneous; but we also call the attention of the court to the question as affected by the married woman's act of 1855, section 3 of which allows them to maintain actions relating to their sole property, in their own names: Comp. Laws, § 3294.

Property in chattels personal may be either in possession or in action: 3 Bl. Com., 388. The only question, therefore, is, whether the damages recoverable in a civil action for an assault and battery, are a chose in action, so as to be a personal chattel, or, in other words, personal property. It seems that Blackstone was of the opinion that all property in action depends entirely upon contracts either express or implied (3 vol. 397); but Chief Justice Sharswood, in his edition of Blackstone's Commentaries, appends the following note: "It is certainly an error to say that all property in action depends upon contracts expressed or implied. There is a very large class of choses in action which arise ex delicto. My claim to compensation for an injury done to my person, reputation or property, is as truly a chose in action as where it is grounded on a breach of covenant or contract. It is true that, in general, an action for a tort to my person or reputation, if not prosecuted to judgment in the life time of the parties, dies--actio personalis moritur cum persona; but as to torts to the property by various statutes generally adopted in the United States, it is not so."

In Michigan we have not only statutes similar to those above mentioned, but also a statute by which actions of assault and battery and false imprisonment survive to a person's executors and administrators: Comp. Laws, § 4208; Gillett v. Fairchild, 4 Denio, p. 80.

The damages occasioned by an assault and battery being property, the only remaining question is, whether they are, when sustained by a married woman, her sole property.

Section 1 of the act of 1855 provides "that the real and personal estate of every female acquired before marriage, and all property, real and personal, to which she may afterwards become entitled by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female,...