Dungan v. Wilmington City Railway Company

• Decision Date: 04 December 1903
• Citation: 58 A. 868,20 Del. 458
• Court: Delaware Superior Court
• Parties: JAMES H. DUNGAN v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware

58 A. 868

20 Del. 458

JAMES H. DUNGAN v. THE WILMINGTON CITY RAILWAY COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

December 4, 1903

Superior Court, New Castle County, November Term, 1903.

ACTION ON THE CASE (No. 54, November Term, 1902), to recover damages for loss and injuries to the plaintiff's horse, carriage and certain other property, alleged to have been caused by the negligence of the defendant company.

The facts appear in the charge of the Court.

The plaintiff was sworn, and, after enumerating his various items of loss, was asked by his counsel, if there were any articles of clothing destroyed, and replied, "Yes, my wife ruined a dress."

Q. Whose dress was that? A. My wife's dress.

Q. Bought for her by you? A. Yes, sir.

Q. How much was it worth?

(Objected to by counsel for defendant on the ground that this being a suit by the husband he could not recover for damage to his wife's property.)

Mr England, for plaintiff, contended that the testimony was admissible. The objection was sustained, but the Court afterwards stated, at the request of Mr. England, that they would hear argument upon the matter. Mr. England thereupon presented the following brief in support of the admissibility of the evidence.

BRIEF.

The title of the husband to the wearing apparel purchased by his wife with his money is sufficient to enable him to recover damages for the injury or destruction of said apparel.

Smith vs. Abair, 87 Mich. 62; State vs Hays, 21 Ind. 288; Hawkins vs. Railroad Co., 119 Mass. 596; Curtis vs. Railroad Co., 74 N.Y. 116; Pratt vs. State, 35 Ohio St. 514.

The real and personal property of any married woman which has been heretofore acquired, is now held, or which she may hereafter acquire in any manner whatsoever from any person other than her husband shall be her sole and separate property. Chapter 550, Vol. 14, Laws of Delaware, Sec. 1, Revised Code (1893), 600.

State vs. Dredden, 1 Marv., 522; Vincent vs. Ireland, 2 Pennewill, 580.

(Counsel for defendant then stated that they were willing to admit that the plaintiff had the right under the married woman's act of this State, to prove, as a part of his damages, the value of the wife's dress. The plaintiff was then allowed by the Court to go upon the stand and give evidence upon the above point.)

Verdict for defendant.

Howell S. England for plaintiff.

Walter H. Hayes and George N. Davis for defendant.

LORE, C. J., and SPRUANCE and GRUBB, J. J., sitting.

OPINION

SPRUANCE, J. charging the jury:

Gentlemen of the jury:--This action was brought by James H. Dungan, the plaintiff, against The Wilmington City Railway Company, the corporation defendant, to recover damages for loss and injury of the plaintiff's horse, carriage and certain other property, alleged to have been caused by the negligence of the defendant company.

On the tenth or eleventh of September, 1902--the precise day being immaterial--the carriage of the plaintiff, driven by his wife, was going easterly on Chestnut Street, and an electric car of the defendant was going southerly on Monroe Street, when a collision occurred between said car and carriage at the junction of the said streets.

The plaintiff claims that the driver of the carriage was exercising due care and diligence, and that the collision was occasioned solely by the negligence of the servant of the defendant in charge of the car, which the plaintiff alleges was running at a high and dangerous speed, and without due and timely notice or warning of its approach by bell, gong, or otherwise.

The defendant claims that the car was running at a moderate and proper speed, that due and timely warning of its approach was given by ringing its bell or gong,--that the motorman was competent for the service in which he was engaged, and that he made every effort in his power to stop the car as soon as the carriage was discovered, and that he exercised due and proper diligence, and that the collision was not caused by the negligence of the defendant or its servant, but was caused solely by the negligence of the driver of the plaintiff's carriage.

Chestnut and Monroe Streets are public streets of the city of Wilmington. The defendant company has the right to use Monroe Street for the operation of its railway thereon, and the public have the right to use both of the said streets for the ordinary purposes of a public highway.

The right of each must be exercised with due regard to the right of the other, and the...