Gilman v. Gilman.

• Decision Date: 07 January 1947
• Docket Number: No. 1068.,1068.
• Citation: 51 A.2d 46
• Court: Vermont Supreme Court
• Parties: GILMAN v. GILMAN.

51 A.2d 46

GILMAN

v.GILMAN.

No. 1068.

Supreme Court of Vermont.

Jan. 7, 1947.

Exceptions from Rutland County Court; Black, Presiding Judge.

Action by Richard Gilman against George C. Gilman to recover for loss of services of plaintiff's wife and for medical and other expenses necessitated by an injury to her allegedly caused by gross negligence of defendant in operation of an automobile in which plaintiff's wife was riding. Plaintiff was permitted, subject to objection and exception of defendant, to file an amendment to his complaint alleging that a judgment previously recovered by plaintiff's wife against defendant for her injuries estopped defendant from denying liability in husband's action, defendant's demurrer to the amendment was overruled, and the cause was brought to Supreme Court before final judgment on defendant's exceptions.

Exceptions sustained, judgment reversed and cause remanded.

Asa S. Bloomer, of Rutland, for plaintiff.

Ryan, Smith & Carbine, of Rutland, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

SHERBURNE, Justice.

This is an action to recover for the loss of services of the plaintiff's wife, Bertha Gilman, and for the plaintiff's, medical and other expenses resulting from, and necessitated by, an injury to her, alleged to have been caused by the gross negligence of the defendant in the operation of an automobile, in which she was riding as a passenger on a highway in Massachusetts. After the commencement of the suit, and subject to the objection and exception of the defendant, the plaintiff was given leave to file an amendment to his complaint, that at a prior term of court Bertha Gilman had recovered judgment against the defendant for the injuries sustained by her on such occasion, and alleging that the defendant is estopped to deny liability in this action, and that the only issues are marriage and the damage. Thereupon the defendant demurred to the amendment on the ground that a judgment in favor of Bertha Gilman does not estop the defendant from denying liability in this suit, because the plaintiff is not in privity with his wife. The demurrer was overruled, subject to exception, and the cause has been brought here before final judgment.

By P.L. 3074, as amended by No. 31 of the Acts of 1943, a married woman may make contracts with any person other than her husband, and sue and be sued upon the same without joining her husband as plaintiff or defendant. By P.L. 3077 all personal property and rights of action acquired by a married woman during coverture, except by gift from her husband, shall be held to her sole and separate use. By P.L. 3080 a husband shall not be liable for the torts of his wife unless committed by his authority or direction. These provisions, so far as here material, are derived from No. 140 of the Acts of 1884. Since the enactment of that act a married woman in this State, who is injured through the negligence of another, may recover damages for her injury in the same manner as if she were a feme sole, and it is error to join her husband, as was the rule at common law. Story v. Downey, 62 Vt. 243, 20 A. 321; Wright v. Burroughs, 61 Vt. 390, 18 A. 311. At the same time, as her husband is bound to provide for her support, he may maintain an action in his own name for her care and cure and for the loss of her services. Whitcomb v. Town of Barre, 37 Vt. 148; Lindsey v. Town of Danville, 46 Vt. 144, 150.

As said in Duffee v. Boston Elevated Railway Co., 191 Mass. 563, 77 N.E. 1036, 1037: ‘These are separate actions to recover damages which each suffered individually from the same wrong. Except so far at the consequences of the wrong are to be considered in assessing damages, the liability of the defendant depends upon the same facts in each case; but the actions are as independent of each other as two actions founded on a collision of two teams, caused by the negligence of the defendant, one brought by the driver, a servant of the owner of the team, to recover for his personal injuries, and the other by the owner, to recover for damages to his horses and wagon. The defendant's liability for the damages in the two cases...