Karnuff v. Kelch

• Decision Date: 16 June 1903
• Citation: 68 N.J.L. 499,55 A. 163
• Parties: KARNUFF et al. v. KELCH et al.
• Court: New Jersey Supreme Court

55 A. 163

68 N.J.L. 499

KARNUFF et al.

v. KELCH et al.

Supreme Court of New Jersey.

June 16, 1903.

(Syllabus by the Court.)

Error to Circuit Court, Middlesex County.

Action by Frieda Karnuff and George Karnuff against William Kelch and Henry Kelch. Judgment for plaintiffs. Defendants bring error. Affirmed.

Argued February Term, 1903, before GUMMERE, C. J., and FORT, HENDRICKSON, and PITNEY, JJ.

Alam H. & Theodore Strong, for plaintiff in error.

Voorhees & Booraem, for defendants in error.

PITNEY, J. The declaration avers that the plaintiffs were seised and possessed of a tract of land in Middlesex county, upon which they had built their residence, and had their garden, a well, and various buildings, and upon which they lived with their family; that they also had upon the same tract two other houses, occupied by their tenants, and which they were accustomed to rent; that the defendants constructed an embankment upon lands adjoining the plaintiffs' premises, and kept the embankment filled with water; that the embankment was so negligently and carelessly constructed that, by reason thereof, water percolated through it and overflowed the plaintiffs' lands, thereby polluting the plaintiffs' well, preventing them from cultivating their garden and from using the water of the well, and from renting out their houses; and that, by reason of the water lying stagnant upon said lands, the plaintiffs became sick, and were forced to expend moneys in curing such sickness—"to the damage of the said plaintiffs two thousand dollars, and therefore they bring their suit, etc." The defendants pleaded the general issue, and upon the trial the jury found the defendants guilty, and assessed "the damages of plaintiffs" at the sum of $300. The judgment is that the plaintiffs recover against the defendants "their said damages," etc.

There is no bill of exceptions. Error is assigned upon the record (1) on the ground that the declaration is not sufficient in law; (2) that the plaintiffs by the judgment have recovered damages for the sickness of the plaintiffs; (3) that the plaintiffs by the said judgment have recovered damages for the sickness of the plaintiff George Karnuff.

The argument submitted in behalf of the plaintiffs in error is to this effect: That the record shows that the plaintiffs have recovered in this action damages for the sickness of the husband, and also for the sickness of the wife; that the damages awarded are entire, and are presumed to have been given for these injuries, as well as for the others alleged in the declaration; that, although the plaintiffs jointly might recover for the sickness of the wife, yet there could be no recovery in such an action on account of the sickness of the husband, because for such damage he must sue alone; and that where damages are thus given generally, and the declaration includes matter which either affords no cause of action at all, or affords no right of recovery in the same suit, the entire verdict is vitiated, and judgment will either be arrested on motion, or, if entered, will be reversed on error. To these contentions there are several adequate replies.

The mere misjoinder of the wife in an action brought by her husband to recover damages for injuries personal to himself is not ground for reversal of this judgment, because by section 37 of the practice act (Gen. St. p. 2539) it is provided that the misjoinder of a plaintiff shall not be objected to by the defendant unless he give written notice of such objection within five days after plea filed, and the record shows no such notice given. Again, by section 22 of the practice act (Gen. St. p. 2536) it is declared "that in any action by a husband and his wife for an injury done to the wife, in respect of which she is necessarily joined as co-plaintiff, it shall be lawful for the husband to add thereto claims in his own right arising ex delicto, and separate actions brought in respect to such claims may by order of the court be consolidated." This, of course, plainly authorizes the combination in one action of claims for injuries to the person of the wife with injuries personal to the husband, arising ex delicto. I see no reason why there may not be joined in the same action claims arising ex delicto in the joint right of husband and wife with respect to real estate held by them either as joint tenants or as tenants by the entirety. At least, if the objection depends merely upon the misjoinder of parties, it is waived unless timely notice be given under section 37. The failure to give notice under section 37, however, has merely the effect of waiving formal objections, and does not deprive the defendants of any substantial right. If there were any substantial reason for denying the right to recover in this action for any of the several kinds of damage particularized in the declaration, the defendants were entitled to have the recovery properly limited by the trial judge, although no notice of misjoinder had been given. Brown v. Fitch, 33 N. J. Law, 418; Stone v. West Jersey Ice Co., 65 N. J. Law, 20, 46 Atl. 696.

Upon an examination of the declaration, it will be observed that it charges the defendants with the commission of but a single legal wrong, to wit, the overflowing of the plaintiffs' land with water negligently permitted to escape from the defendants' embankment. In averring the damage necessary to constitute a cause of action, several kinds of damage are specified, which the defendants now assert are incongruous one with another, so that they cannot be recovered...