Fox v. Ins. Co. *(Absent
| Decision Date | 30 June 1888 |
| Court | West Virginia Supreme Court |
| Parties | Fox v. Insurance Co.*(Absent, Green, Judge.) |
Our statute (section 12, ch. 66, Code,) providing-that a married woman may sue and be sued, without joining her husband, where the action concerns her separate property, was intended to remove the wife's disability to sue alone, and not impose any disability on her common-law rights or remedies.
It is not error for the wife to join her husband with herself as plaintiff in an action concerning her separate property, although she may in such action sue alone.
W. P. Hubbard for plaintiff in error.
Denis O' Keefe and B. B, Dovener for defendants in error.
Action at law on an insurance policy, brought in the Circuit Court of Ohio county by Honora Fox and Thomas Fox, her husband, against the Manufacturers' Fire Insurance Company of Wheeling. The defendant demurred to the plaintiffs' declaration; and, the demurrer being overruled, it pleaded non assumpsit, and filed two special pleas on which issues were joined. The case was tried by a jury, which returned a verdict of the plaintiffs for $1,139.50. The defendant moved the court to set aside the verdict, and grant it a new trial, which motion the court overruled, and entered judgment upon the verdict, and to this judgment the defendant obtained this writ of error.
The first error assigned is that the declaration is fatally defective, and that, therefore, the court improperly overruled the demurrer thereto. The declaration is in the form prescribed by our statute (section 61, ch. 125, Code). The record does not state any special grounds of demurrer; but it is claimed, in the argument before the court, that inasmuch as the declaration avers that the fire which caused the loss of the property insured by the defendant occurred on or about the 27th day of March, 1882, while the policy, filed with and made part of the declaration, is dated October 7, 1880, and insures the property for one year only from that date, these facts make it apparent that the policy sued on was not in force at the time the alleged loss occurred; that the declaration thus shows affirmatively that the loss occurred after the insurance had expired; and that, therefore, the declaration is fatally defective because it fails to aver any loss against which the defendant had agreed to insure. I do not think this objection can be maintained, for the reason that the policy not only provides for its continuance in force one year from its date, but that it may be continued in force "for such further time as shall be agreed upon, provided the premium therefor is paid and indorsed on this policy, or a receipt given for the same;" and by an indorsement on the policy it does appear that it was continued in force to a time after the loss occurred. But, even if it could be regarded as essential that the declaration should have averred a renewal of the policy, the omission is one that should have been specially called to the attention of the trial court, where the omission could have been at once supplied.
This defect, if it can be considered as such, is one which can not be made for the first time in the appellate court. So far as the record discloses, it was not made or relied on in the trial court; and there being no question as to the fact that the policy was in full force at the time the loss occurred, and it also appearing that the defendant was neither injured nor prejudiced by this inadvertent omission, we feel confident that no good purpose could be subserved by this Court, at this late stage of the proceedings, entertaining this objection. The statute dispenses with the strict rules of common-law pleading, and provides for statements to be filed, at the demand of either party, in order to inform the opposite party of the claim or defence intended to be made. It is therefore, under the circumstances, held to be insufficient to reverse the judgment.
It is further contended that the demurrer should have been sustained because the declaration alleges that the defendant owed the plaintiffs, Honora Fox and Thomas Fox, her husband, while the policy, which is a part of the declaration, shows that the contract of insurance was with the plaintiff, Honora Fox, alone. Without stopping to inquire whether or not this question could or did properly arise on the demurrer, we shall proceed to consider it as one properly presented by the overruling of the defendant's motion for a new trial. The evidence of the plaintiffs shows that the contract of insurance was with the female plaintiff alone, and that the property insured, and which was destroyed by fire, was her separate estate, and her husband had no intererest therein. Thus the question is directly presented whether or not the joinder of the husband with the wife in this action is such a fatal error as warrants this Court in reversing the judgment and setting aside the verdict in favor of the plaintiffs.
Our statute provides that "a married woman may sue and be sued without joining her husband, in the following cases: (1) Where the action concerns her separate property; (2) where the action is between herself and her husband; (3) where she is living separate and apart from her husband; and in no case need she prosecute or defend by guardian or next friend." Section 12, ch. 66, Code 1887, It is not questioned that this action could have been in the name of the wife alone. This is expressly authorized by the first clause of the statute.
The contention is that the joinder of the husband with the wife is a fatal error. The claim is that the statute is mandatory, and that by its terms the wife must sue alone where the action, as in this case, concerns her separate property. Many of the States have statutes similar to ours, though all of them differ in some respects more or less material. It is therefore an unsafe rule for us to follow the decisions of other States, even where their statutes are very similar to ours, especially as there is much conflict and want of uniformity in...
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