Consol. Traction Co. v. Whelan

• Decision Date: 01 July 1897
• Parties: CONSOLIDATED TRACTION CO. v. WHELAN et al.
• Court: New Jersey Supreme Court

37 A. 1106

60 N.J.L. 154

CONSOLIDATED TRACTION CO.

v. WHELAN et al.

Court of Errors and Appeals of New Jersey.

July 1, 1897.

(Syllabus by the Court)

Error to supreme court.

Action by Mary and James Whelan against the Consolidated Traction Company. Judgment for plaintiffs was affirmed in the supreme court, and defendant brings error. Affirmed.

Depue & Parker, for plaintiff in error.

James P. Minturn, for defendants in error.

MAGIE, C. J. The assignments of error are all made upon the record. On behalf of defendants in error it is urged that the court should not consider the question thus raised, because a rule to show cause was allowed in the court below. But this contention is wholly without basis— First, because it does not appear in the record, nor is it otherwise shown, that any rule to show cause was allowed; and, second, because the allowance of a rule is only a waiver of bills of exceptions, and merely debars the party holding such bills from assigning error thereon, leaving him entirely without restriction as to errors in the record. 2 Gen. St p. 2574, § 246.

Plaintiff in error claims that the verdict and judgment disclosed in the record are erroneous. Its contention is that the action is brought by husband and wife for ah injury done to the wife, and that the husband has added to the action claims ha his own right arising ex delicto, out of the injury done to his wife, and that the verdict ought to have awarded damages to both plaintiffs for such amount as the jury deemed would compensate the wife, and to the husband for such amount as they thought he was entitled to, and that the judgment should have been entered accordingly. The verdict assessed the damages of both plaintiffs at $2,750, and the judgment is that they recover of defendant "their said damages." The declaration shows that the action is brought for an injury done to the wife by the negligence of defendant, and that the husband had authority to "add thereto" claims in his own right, arising out of that injury, by the provisions of section 22 of the practice act. 2 Gen. St. p. 2536. The provisions of section 22 were taken from section 40 of the English common law procedure act of 1852, with a single variation. The English act permits the husband to add to the joint action claims in his own right generally; our act limits the claims the husband may add to the joint action to those arising ex delicto. Both acts contain a provision that separate actions brought in respect of such claims— i. e. claims of husband and wife in the right of the wife, and claims of the husband in his own right— might be consolidated. Had the separate claims in this case been made the basis of separate suits, and had such suits been consolidated, I apprehend that no question could be made as to the propriety and necessity of...