Crump v. McKay

• Decision Date: 31 December 1860
• Citation: 8 Jones 32,53 N.C. 32
• Court: North Carolina Supreme Court
• Parties: SOLOMON CRUMP v. WILLIAM J. McKAY.

8 Jones (NC) 32

53 N.C. 32

SOLOMON CRUMP

v.WILLIAM J. McKAY.

Supreme Court of North Carolina.

December Term, 1860.

In an action against a ferryman for negligently carrying plaintiff's wife across his ferry, whereby she was injured, it is not necessary that the wife should be made a party plaintiff.

ACTION on the CASE, tried before FRENCH, J., at the last Fall Term of Richmond Superior Court.

The declaration was in case for negligence in the defendant's ferryman, whereby plaintiff's wife and child were thrown into the Cape Fear river from the defendant's boat, and injured.

The Court intimating an opinion that the action could not be sustained without making the wife a party plaintiff, the plaintiff submitted to a nonsuit and appealed.

No counsel appeared for the plaintiff in this Court.

Strange, for the defendant .

PEARSON, C. J.

If one slanders a married woman or commits an assault and battery upon her, the action for injuring her must be in the name of husband and wife, although in the latter instance if there be any damage besides the pain suffered by the wife, as a loss of service, or an injury to clothes, or medical bills, the husband may sue alone and allege special damage.

So if one drive his carriage so negligently as to run against a married woman, in an action for the personal injury to her she is a necessary party, and the husband cannot sue alone without alleging special damage.

From the argument made in this Court, we suppose his Honor intimated the opinion that the wife was a necessary party in this action, upon the idea that it fell within the principle stated above, and did not have his attention directed to the fact that the ground of the action was not a simple tort, or personal injury to the wife and child of the plaintiff, but originated in contract. The plaintiff, either in person or by his wife, as an agent, made an agreement with the defendant by which he undertook to carry the wife and child of the plaintiff across the river with ordinary care. It is assumed by the case that the defendant was guilty of negligence, by reason of which the wife and child were thrown into the river. This was a breach of the agreement, whereby an action accrued to the plaintiff, and, as a matter of course, he was entitled to recover damages to some amount.

The writ is “trespass on the case,” and it does not appear by the record whether the plaintiff declared in contract or in tort. He had his election to declare in either form of action. If the...