Fink v. Campbell

• Court: U.S. Court of Appeals — Sixth Circuit
• Citation: Fink v. Campbell, 70 F. 664 (6th Cir. 1895)
• Decision Date: 05 November 1895
• Docket Number: 346.
• Parties: FINK et al. v. CAMPBELL, et ux.

70 F. 664

FINK et al. v. CAMPBELL, et ux.

No. 346.

United States Court of Appeals, Sixth Circuit.

November 5, 1895

Wm. L Welcker, for plaintiffs in error.

Isaac Harr and Burrow Bros., for defendants in error.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, J.

LURTON Circuit Judge.

The Tennessee statute of limitations provides that all actions for 'personal injuries' shall be brought within one year from after cause of action accrued. Rev. St. Tenn (Mill. & V. Code 1884) Sec. 3469.

This cause of action is for a personal injury sustained by Mrs Campbell, wife of George F. Campbell, more than one year after cause of action arose, and is barred unless within the saving clause of the same statute.

By section 3451, Rev. St. Tenn. (Mill. & V. Code 1884), it is provided that:

'If the person entitled to commence an action is, at the time the cause of action accrued, either (1) within the age of twenty-one years; or (2) of an unsound mind; or (3) a married woman; or (4) beyond the limits of the United States, or the territories thereof,-- such persons, or the representatives and privies, as the case may be, may commence the action after the removal of such disability, within the time of the limitation for the particular cause of action, unless it exceed three years, and in that case, within three years after the removal of such disability.'

The declaration alleged that the injuries for which the suit was brought were exclusively those to the person of Mrs. Campbell, who was then, and had ever since been, the wife of George F. Campbell, who joined in the suit as husband. Having neglected for one whole year to bring this suit, the question for determination is whether or not this default operates to suspend Mrs. Campbell's right of action until after the removal of the disability of coverture. The plaintiffs in error made the point by pleading the statute of one year. To this plea the defendants in error demurred. The court sustained the demurrer, and this is the only error assigned.

That Mrs. Campbell may sue within one year after the removal of her disability of coverture is the plainly expressed language of the saving clause of the Tennessee statute, heretofore set out. Whirley v. Whiteman, 1 Head, 610; Cargle v. Railroad Co., 7 Lea, 719; Alvis v. Oglesby, 87 Tenn. 182, 10 S.W. 313. Is there anything in this statute that will prevent her from suing at any time during her disability, her husband consenting to join with her, or must she sue within one year after the right of action accrued, on penalty of suspension of her right of suit until disability be removed? The common-law rule which requires the joinder of husband and wife in a suit for an injury to the person or character of the wife has not been affected by legislation in Tennessee. The saving clause of the statute in respect of the disability of coverture is in the same terms as those in respect of the other disabilities, of infancy or unsoundness of mind, and there is no essential difference between this clause of the Tennessee statute and the seventh section of the English statute of 21 Jac. I. If an infant may sue at any time during disability by prochein ami, or a lunatic by guardian, it would seem that a married woman may likewise sue with the co-operation of her husband at any time during coverture, or bring her separate suit within the time allowed by the saving clause, unless there be something peculiar to an action for an injury to the person of the wife which constitutes it a joint tort against husband and wife. That an infant may sue at any time during infancy by next friend, and that to such a suit the statute of limitations would be no defense, seems to be clear on reason and authority.

In Chandler v. Vilett, 2 Saund. 120, it was ruled that if an infant brought an action of assumpsit during his infancy, but after six years from the time the cause of action accrued, and the defendant pleaded the statute of six years' limitation, it would be a good replication that when the cause of action arose, and when the suit was brought, the plaintiff was and still is an infant.

This construction of the saving clause as permitting suit to be brought at any time during the disability was followed in respect of the disability of imprisonment. Piggott v. Rush, 4 Adol. & E. 912.

In Strithorst v. Graeme, 3 Wils. 145, it was said:

'An infant may sue before he comes of age if he pleases, but, if he does not, he has six years after he comes of age to bring his action. While any of the disabilities mentioned in the statute of limitations continue, the party may, but is not obliged to, commence his action. The statute does not run while any of those disabilities continue.'

So in Whirley v. Whiteman, heretofore cited, it was said that an infant may sue for a personal injury at any time during infancy by prochein ami; or he may postpone doing so, and bring his suit at any time within one year after arriving at age.

And in Cargle v. Railroad Co., also cited above, it was said by Cooper, J.:

'The right of action of a person under disability is protected against lapse of time by statute. An infant may therefore sue by next friend during minority for damages to his person, or in his own name after he comes of age, within the time prescribed.' 7 Lea. 719.

That the statute does not run against persons under the disabilities mentioned in the statute of limitations is well settled. 2 Wood, Lim.Act. § 240, and cases cited.

The further objection, that the default of the husband in bringing suit with his wife within one year after a right of action arose has operated to bar him, or any suit in which he must join his wife, is based upon a misconception of the nature of a suit for a tort upon the wife. Two entirely separate causes of action may arise from an injury to the person of the wife during the disability of coverture,-- one for the injury to the wife, and the other for the damages resulting to the husband for the loss of the services and society of the wife, as a consequence of the tortious injury his wife had sustained. Though these rights of action have their origin in the same injuries, the damages are distinct, and cannot be recovered in one action. 2 Bish.Mar.Wom.§§ 272, 273; 2 Thomp.Neg. § 1240; Smith v. City of St. Joseph, 55 Mo. 456; Mosier v. Beale, 43 F. 358; Monroe v. Maples, 1 Root, 422; Newton v. Hatter, 2 Ld.Raym. 1208; Matthew v. Railroad Co., 63 Cal. 451.

Neither can the husband sue for and recover damages for the injury sustained by his wife. The pain and suffering she has endured will not support an action by the husband. To recover such damages the suit at common law must be in the name of the husband and wife. Though such a claim for damages constitutes a postnuptial chose in action of the wife, yet, inasmuch as it has its origin in a tort by which the person of the wife has sustained injury, it differs materially from the wife's choses in action arising out of claims for money or personal property which accrue during coverture. While an action upon a money or property claim accruing to the wife may be prosecuted by the husband alone, it is well settled that an action for a tort on the wife's person, or a slander touching her character, can be brought during coverture only by a suit in which husband and wife are joined as plaintiffs. 2 Add.Torts (Wood) § 1294. Though this joinder is essential, it is not because the tort is joint, or the action one in which the damages sustained by each can be recovered. Two persons injured at the same time and by the same tort cannot join in one suit, for it is difficult to conceive of a joint right of action for a tort upon two or more persons. Martin, Hist. Lawsuit, p. 65; 1 Chit.Pl. 73; Bish. Mar. Wom. Secs. 273, 274; Laughlin v. Eaton, 54 Me. 156; Hooper v. Haskell, 56 Me. 251. In Newton v. Hatter, 2 Ld.Raym. 1208, the plaintiffs were husband and wife, who sued for a battery committed on them both, and there was judgment by default. Judgment was arrested, 'because the wife cannot join in an action with the husband for a battery on the husband. ' A new action was brought only for the battery committed on the wife, to the damage of the husband. There was judgment for the plaintiff, which was arrested upon the ground that the ad damnum should have been for the damages sustained by the wife, 'the damages in such case surviving to the wife if the husband dies before they are recovered. '...