Ferguson v. Brooks

• Decision Date: 04 August 1877
• Parties: ELISHA G. FERGUSON v. AUGUSTUS W. BROOKS et ux.
• Court: Maine Supreme Court

67 Me. 251

ELISHA G. FERGUSON v. AUGUSTUS W. BROOKS et ux.

Supreme Judicial Court of Maine.

August 4, 1877

ON EXCEPTIONS AND MOTION.

TRESPASS against husband and wife, that the said Mary J Brooks, on the fifteenth day of November, 1872, at said Elliot, with force and arms took and carried away the two cows of the plaintiff then and there found, and being of great value, to wit, of the value of seventy-five dollars each, and for a long time, to wit, for the space of five days, detained the said cows, without any reasonably suitable care, shelter and food, and drove the same violently for a great distance, to wit, for the distance of five miles whereby they were greatly damaged, to wit, to the sum of seventy-five dollars.

Also for that the said Mary J. Brooks, on the fifteenth day of November, A. D. 1872, at said Eliot, by herself, her servants, agents and employees, with force and arms, took and carried away and unlawfully impounded the two cows of the plaintiff, of great value, to wit, of the value of one hundred and fifty dollars, and for the space of five days unlawfully detained said cows, without any sufficient or proper shelter, care, attendance or food, and violently drove said cows for the distance of five miles, and prevented the said cows from coming to the possession or care of the plaintiff for said five days, whereby said cows were greatly injured, & c., & c. To the damage of the said plaintiff, as he says, the sum of two hundred dollars.

Plea. And now the said defendants come and defend, & c., when, & c., and say they are not guilty in manner and form as the plaintiff has declared against them, and of this they put themselves upon the country. By Burbank & Derby, their attorneys.

And the plaintiff doth the like. By G. C. Yeaton, his attorney.

The evidence was in substance as follows:

It was admitted that the wife owned the place.

The plaintiff testified that he saw both defendants driving the cows into the barn, Friday, and that he next saw the cattle Saturday evening, a mile away at the town pound.

Levi A. Shapleigh testified that he was pound keeper, that he gave no bond and had lost his record, that Mr. Webber turned the cattle in, that witness locked the pound and kept the key; that he received with them a written paper signed by the two defendants, giving a description of the animals, and stating they were taken from the inclosure of Augustus W. Brooks and Mary Jane Brooks; that Sunday night they were still there unfed; that they got out, he did not know how; he saw them out Monday.

Mary J. Brooks testified that she had nothing to do with the cattle, that she was present when her husband drove them into the barn, but did not assist; did not sign the certificate nor authorize its signing, tried to prevent their being impounded; advised her husband to drive them home, instead of to the pound, that in what she did, she was not in any way coerced by her husband.

Augustus W. Brooks testified that he drove the cows to pound against the wishes of his wife, and that he interlined her name without her consent.

The presiding justice instructed the jury in part, as follows: There is another mode by which an agent's act, done for a party without any previous authority, may be adopted by the principal and thus do what the law calls ratify it. For instance, a person does some act for your benefit, and for you in your behalf; he comes and tells you what he has done, and you from that moment may adopt it and ratify it, and say you did right and I will pay you, or not, (just as you see fit) at any rate you may adopt his act as your act, and then it would govern you, and you would be responsible, and liable therefor just as much as if you had in the first instance authorized him to go and do that act. But before there can be a ratification of that kind the act itself, done by the agent, must have been done for you when he did it.

Verdict. The jury find that the defendant, Mary J. Brooks, is guilty in manner and form as the plaintiff has declared against her, and assess damages for the plaintiff in the sum of thirty dollars.

To the foregoing instruction, the defendants alleged exceptions. They also filed a motion to set aside the verdict as against law and evidence.

H. H. Burbank & J. S. Derby, for the defendants.

First, as to the exceptions.

The ruling complained of is, substantially, that a married woman may adopt and ratify the prior, tortious act of the husband so as to render her liable in trespass.

I. The position of the feme-covert as to torts is defined and governed by the common law. Ballard v. Russell, 33 Me. 196. Laughlin v. Eaton, 54 Me. 156.

At common law the husband is liable for torts of the wife; if committed in his company or by his order he is alone liable; if not they are jointly liable. Ball v. Bennett, 21 Ind. 427. Brazil v. Moran, 8 Minn. 236. Marshall v. Oakes, 51 Me. 308. State v. Cleaves, 59 Me. 298. Commonwealth v. Eagan, 103 Mass. 71. Commonwealth v. Burk, 11 Gray 437. Carleton v. Haywood, 49 N.H. 314. Park v. Hopkins, 2 Bailey 411. Kowing v. Manly, 49 N.Y. 192. Commonwealth v. Munsey, 112 Mass. 287.

A fortiori, she cannot be held liable for torts committed by him in her absence " without any previous authority."

She cannot even be liable for the husband's fraud, committed in an exchange of her property, and of which she reaps the benefit. Birdseye v. Flint, 3 Barb. 500. 2 Hilliard on Torts, 513.

II. At common law a married woman " cannot be a trespasser by prior or subsequent assent." 1 Chitty's Pleading, 12th Am. Ed., 76, 80. Bacon's Ab., Title, Infancy, H. Co. Lit., 180, b, note (4); 357, a.

Second, as to the motion.

This action is trespass for unlawfully impounding two cows. The plaintiff declares against Augustus and his wife Mary Jane Brooks, alleging trespass by her; and the verdict against the latter only.

I. The verdict was against the law of the case.

The verdict should respond to the issue presented, otherwise it is bad. This being an action for the tort of the wife, and necessarily brought against husband and wife, the verdict must abide by that necessity. Brown v. Chase, 4 Mass. 436. Commonwealth v. Wood, 12 Mass. 313. Whitmore v. Delano, 6 N.H. 543.

II. The verdict was manifestly against the evidence and the weight of evidence in the case.

Mary Jane Brooks committed no act of trespass. Even the evidence of plaintiff, carefully analyzed and compared, shows no such act. Her evidence proves the negative.

G. C. Yeaton, for the plaintiff, replied orally.

BARROWS J.

The defendants contend that the verdict is against law, fatally defective, and that no judgment can be rendered upon it because, although the jury have found that the wife, Mary J. Brooks, is guilty of the trespass alleged, they have not found the husband, Augustus W. Brooks, guilty also.

But the plaintiff did not allege the commission of any trespass by Augustus W. Brooks. The suit is not for a tort alleged to have been committed jointly by the husband and wife, but it is charged in the first count as committed by the wife, and in the second, by her and her servants, agents and employees.

Where a suit is thus brought against husband and wife for a tort committed by the wife, the liability of the husband necessarily follows from the existence of the marital relation, and a verdict that the wife is guilty disposes of the whole issued raised by a joint plea of not guilty.

The only question open for the jury to pass upon under such a plea is whether the wife committed the trespass. If she did, the law makes the husband responsible with her; and the jury have no occasion to find him guilty of a wrong which he did not commit, although he is bound to answer for it.

Where, as here, the writ describes the defendants as husband and wife, and the cause of action alleged is a tort of the wife, such a relation between the parties defendant as will make the man responsible for the torts of the woman must be regarded as admitted by the pleadings unless specially denied. It is not an open question under the general issue. In an ancient case, the plea of " Gray and Norton sued by the names of Gray and wife at suit of Kether," as given in Wentworth's Pleadings, vol. 1, p. 6, is a plea in abatement; while a denial of the marriage of parties joining as plaintiffs in that alleged relation seems to be pleadable in bar with a protestation that the defendant's wife is not guilty of the trespass charged. Went. Plead. vol. 1, p. 42.

In Oliver's edition of Story's Pleadings, p. 96, in the notes to the plea of no marriage, (which, as in Wentworth, is given among the pleas in abatement) while it is doubted whether in ordinary personal actions the plea is good, it is said that " if persons are sued as baron and feme who are not so de facto they may plead not covert."

In a case given in the Instructor Clericalis, vol. 6, p. 649, where to a count against baron and feme for alleged trespass of the wife, the defendants pleaded not guilty as to part and a justification as to the remainder, judgment was given for the plaintiff because, among other things, the plea was bad for the reason that " by the declaration the wife only is charged to be the trespasser, and yet to all the trespasses, præ ter, & c. they have both pleaded quod ipsi non sunt culpabiles. "

Hence we see that the proper general issue in a suit like this is that the wife is not guilty, for she only is charged with the commission of...