Brazil v. Moran

• Decision Date: 01 January 1863
• Citation: Brazil v. Moran, 8 Minn. 205 (Minn. 1863)
• Parties: TERRENCE BRAZIL vs. LAWRENCE MORAN et al.
• Court: Minnesota Supreme Court

8 Minn. 205

TERRENCE BRAZILvs.

LAWRENCE MORAN et al.

Supreme Court of Minnesota.

Appeal from order of district court, Scott County.

Henry Hinds, for appellant.

Daniels & Grant, for respondents.

EMMETT, C. J.

We do not see how the verdict, as against Margaret Moran, can be sustained, in any aspect that we have been able to take of this case. She is a married woman, the wife of Lawrence Moran, another of the defendants; and it clearly appears from the allegations of the complaint, as well as from the evidence on the trial, that whatever part she took in the tort complained of, was in the company of her husband; and for which, prima facie at least, he alone is responsible. Kent seems to lay down the broad doctrine that the wife cannot be made liable at all under such circumstances, 2 Kent, 149; and by another text-writer it is asserted that where an action is brought against husband and wife, for a battery by them committed together, and both are found guilty, judgment must be arrested, because the wife, under such circumstances, could not commit a battery." Reeve Domestic Rel. 73. The case at bar is identical with that put by Reeve, and should, we think, be governed by the doctrine he lays down, although it is not necessary in this case to assert the doctrine so broadly. There is an occasional case to be found where the wife has been held jointly liable with the husband for torts committed by her in his presence. Such is the case reported in 19 Barb. 321, where it was held that the presumption of coercion by the husband may be rebutted by proofs; yet these cases are exceptional, and, it is believed, are confined to instances where the wife was the actor in committing the tort, and the husband, though present, neither took part himself nor assented to the act or conduct of the wife. Such, however, is not the case in this instance, for the same evidence that connects the wife with the assault and battery committed on the person of the plaintiff, shows also that she was not an actor, but merely an encourager of others, in which she does not appear to have done more than follow the example of her husband. They were together, alone, a short distance from where the others were beating the plaintiff; and the husband, instead of dissenting from, seems heartily to have approved of, if not instigated, what the wife said on that occasion. Both endeavored to incite the others to further violence, but she is not shown to have said anything until after her husband set the example. Under such circumstances, the presumption arising from the presence of the husband is in no degree rebutted or weakened. The only fact which the plaintiff's counsel relies upon for that purpose is the alleged physical superiority of the wife over the husband at the time, arising from his recent illness; but it by no means follows from that alone, that he would lose thereby the habitual influence or control which a husband is presumed to possess and exercise over the conduct of his wife while in his presence. It is immaterial to this case, therefore, whether the rule is as laid down by Kent and by Reeve, or qualified, as by the decision in 19 Barb. 321, because either is sufficiently broad to relieve the wife from responsibility.

A feme covert is jointly liable with her husband for all torts committed by her when not in company with him, and would be so liable for all...