Hayes v. Virginia Mut. Protection Ass'n

• Decision Date: 16 February 1882
• Parties: HAYES AND WIFE v. VA. MUTUAL PROTECTION ASSOCIATION.
• Court: Virginia Supreme Court

76 Va. 225

HAYES AND WIFE v. VA. MUTUAL PROTECTION ASSOCIATION.

Supreme Court of Appeals of Virginia.

February 16, 1882

Error to judgment of circuit court of Richmond city in action of covenant brought by James Hayes and Mary Hayes, his wife against the Virginia Mutual Protection Association on a policy of life insurance taken out by Patrick McNamara on 6th November, 1877, for the sole benefit of his daughter, the said Mary Hayes. The other facts and the pleadings necessary for a proper understanding of the case are stated in the opinion of the court.

W W. & B. T. Crump, for the appellants.

John A. Coke and Robert E. Scott, for appellee.

OPINION

ANDERSON J.

The obligation of the association, the defendant in error, in its policy of insurance, is to pay the money, an amount not exceeding $5,000, for which this suit is brought, to Mary Hayes, or her legal representative, within ninety days from the filing proof of the death of Patrick McNamara, whose life is insured for the benefit of said Mary Hayes, who is his daughter.

By the act of assembly, " securing to married women on conditions all property acquired by them before or after marriage, approved April 4, 1877" (Session Acts, 1876-7, page 333), this chose in action was the property of the said Mary Hayes for her sole and separate use, and she may bequeath the same as if she were unmarried, and it is not liable to the debts or liabilities of her husband. He has no interest in it whatever. It is the sole and separate interest of his wife, which is in no way subject to his control. But she is required by the statute to join her husband with her in any action for its recovery; though by section 3 of said act, in the event of her husband refusing, or being incompetent to unite in the conveyance or disposal of her separate estate, she may in her own name, or by her next friend, file a bill in equity. That was the object of this suit. This act was in force when the policy in this case was issued, which is dated the 6th of November, 1877. The amendment to this act, approved March 14, 1878 (Session Acts of 1877-78, p. 247) makes no change in the law in effect as hereinbefore set out.

This suit was brought in the name of James Hayes and Mary Hayes, his wife, the wife having joined his name with hers as plaintiff, as required by the statute. Does that render her incompetent to testify in her own behalf?

At common law husband and wife are incompetent to testify for or against each other; and this rule is not altered by the statute removing incompetency by reason of interest. (Code of 1873, chapter 172, sections 21 and 22.) The exception as to the competency of husband and wife is, " as witnesses for or against each other." Neither by the common law nor by statute is either incompetent to testify in his or her own behalf, but not for or against the other. The husband is no party to the policy, and has no right, title or interest under it. The money, if recovered, is exclusively the wife's, and must be paid to her or her personal representative. And it is her action to recover it. Her husband is joined with her, not because of any interest he has in the subject, or from choice, but because the statute required it, to give her a remedy for her rights. The suit is for her exclusive benefit, and her husband is a mere nominal party only for conformity to the statute, without any interest in the subject matter of the suit. If she testifies in the case, it is on her own behalf, and not for or against her husband.

But it is contended though he may not be interested in the subject matter of the suit, he is liable for the costs if it goes against her, and is interested in that respect in the result of the suit, and that there is a judgment against him in the court below for the costs. If he is not liable, that judgment is erroneous, and can now be reviewed and set aside. Is he liable for costs?

The husband is joined as plaintiff because the statute requires the remedy-- the wife's remedy --to be prosecuted in that way. And as he has no legal interest in the subject, it could hardly have been intended to impose a burden upon him, such as liability for costs in the event of the failure of the suit. It would seem that the judgment for costs should be against the wife only.

If the suit had been brought in the name of Hayes and wife for the benefit of Mary Hayes, she alone would have been liable for costs under our statute (Code of 1873, chap. 181, section 9) which provides that " where a suit is in the name of one person for the benefit of any other, if there shall be a judgment for defendant, costs shall be against such other." It as evidently appears from the face of the record that this suit was brought for the benefit of Mrs. Hayes as it would if such endorsement had been made upon the writ or the declaration. Though the suit is in the name of husband and wife, it is evidently for the benefit of the wife alone. It was said by Judge Moncure, in Clarksons v. Dodridge, 14 Gratt. 44, " It is usual, when an action is brought in the name of one person for the use of another, to state the fact in the body of the declaration, or by an endorsement thereon, or on the writ. And it is useful and convenient to do so. * * * But this [he says] is not necessary." The endorsement may be made at any time during the progress of the suit. It is sometimes not made until after an execution is issued, which is then endorsed for the benefit of the party for whose...