City of Michigan City v. Ballance

• Decision Date: 22 April 1890
• Citation: 24 N.E. 117,123 Ind. 334
• Parties: City of Michigan City v. Ballance.
• Court: Indiana Supreme Court

123 Ind. 334

24 N.E. 117

City of Michigan City

v.Ballance.

Supreme Court of Indiana.

April 22, 1890.

Appeal from circuit court, La Porte county; Daniel Noyes, Judge.

W. H. Breese, J. A. Thornton, and Mortimer Nye, for appellant. H. B. Tuthill and L. A. Cole, for appellee.

Berkshire, J.

The appellee was the plaintiff, and the appellant the defendant, in the court below. The complaint is in two paragraphs, not materially different, and charges negligence upon the appellant in allowing a certain sidewalk along one of its streets to get out of repair, because of which the appellee was seriously injured in her person, greatly to her damage. To the complaint the appellant filed an answer in general denial. The cause was submitted to a jury, and a verdict returned for the appellee in the sum of $700. The appellant moved the court for a new trial, which motion the court overruled, and the proper exception was reserved. The appellant has assigned a number of errors, but we must disregard all of them but the first and tenth, as relating to matters not properly assignable as error in this court. By the tenth error the sufficiency of the complaint is brought in question; the attack thereon being made for the first time in this court.

It is contended that the appellee being a married woman, the cause of action stated was in her husband, and that he alone can maintain the action. The contention is that the cause of action stated only relates to money which was laid out and expended on account of the injuries received, and that for damages of this character the husband, and not the wife, must bring the action. There may be cases where the husband, and not the wife, would be the proper party to sue for money expended because of injuries suffered by the wife, but we are not willing to concede that this would be true in a case where the wife's money, and not the husband's, is laid out and expended. But no such question arises upon the complaint here under consideration. It no where appears in the complaint that the appellee was a married woman. This fact appears upon the trial, but not in the complaint, and then the scope and theory of the complaint is much broader than the appellants' counsel are willing to admit. We make the following quotation from the first paragraph: “That said plaintiff was thrown forward and side ways, with great violence and force, to the ground, whereby her hands, knees, face, and other parts of her body were bruised,...