Labonte v. Davidson

• Decision Date: 03 October 1918
• Citation: 175 P. 588,31 Idaho 644
• Parties: LOUIS LABONTE and JOSEPHINE M. LABONTE, His Wife, Respondents, v. R. M. DAVIDSON, Appellant
• Court: Idaho Supreme Court

175 P. 588

31 Idaho 644

LOUIS LABONTE and JOSEPHINE M. LABONTE, His Wife, Respondents, v. R. M. DAVIDSON, Appellant

Supreme Court of Idaho

October 3, 1918

APPEAL from the District Court of the Third Judicial District, of Ada County. Hon. Carl A. Davis, Judge.

Action for damages. Judgment for plaintiffs. Affirmed.

Judgment and order affirmed. Costs awarded to respondents.

Givens & Barnes and Wyman & Wyman, for Appellant.

The husband was entitled to maintain a separate action to recover for medical attendance, loss of service and of the society of his wife. (Ohio & M. Ry. Co. v. Cosby, 107 Ind. 32 7 N.E. 373; Indiana Union Tract. Co. v. McKinney, 39 Ind.App. 86, 78 N.E. 203; Efroymson v. Smith, 29 Ind.App. 451, 63 N.E. 328; Birmingham etc. Ry. Co. v Lintner, 141 Ala. 420, 109 Am. St. 40, 3 Ann. Cas. 461 38 So. 363; Denver Consol. Tramway Co. v. Riley, 14 Colo. App. 132, 59 P. 476.)

Evidence of expenses for medical services in a joint suit by husband and wife is inadmissible. (Louth v. Thompson, 1 Penne. (Del.) 149, 39 A. 1100; Lindsay v. Oregon Short Line R. Co., 13 Idaho 477, 90 P. 984, 12 L. R. A., N. S., 184.)

Several distinct causes of action were stated in one count, contrary to the rule laid down by this court. (Jones v. City of Caldwell, 20 Idaho 5, 116 P. 110, 48 L. R. A., N. S., 119; Fox v. Rogers, 6 Idaho 710, 59 P. 538; Kruger v. St. Joe Lumber Co., 11 Idaho 504, 83 P. 695; Skoglund v. Minneapolis St. Ry. Co., 45 Minn. 330, 22 Am. St. 733, 47 N.W. 1071, 11 L. R. A. 222.)

A statement by counsel of a fact not in evidence will entitle his adversary to a new trial, though on exception being taken to the statement the court sustained the exception, and instructed the jury to disregard the statement, unless it appears from the record that the decision of the jury was not affected by the admitted wrong. (Bullard v. Boston etc. R. R. Co., 64 N.H. 27, 10 Am. St. 367, 5 A. 838; Tucker v. Henniker, 41 N.H. 317, 322; Jordon v. Wallace, 67 N.H. 175, 32 A. 174; Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; Petajaniemi v. Washington Water Power Co., 22 Idaho 20, 124 P. 783; Powers v. Boise City, 22 Idaho 286, 125 P. 194; McLean v. Hayden Creek Min. etc. Co., 25 Idaho 416, 138 P. 331.)

Compensatory damages in the sum of $ 5,000 are excessive because, in the first place, it was not shown that Mrs. Labonte was permanently injured, and, in the second place, there was no evidence showing that her injuries came from any acts on the part of the defendant, R. M. Davidson.

In the following cases, the injuries inflicted were much more severe and the circumstances much more aggravated than in the case at bar, and yet the damages allowed were much less than the damages allowed here: Plonty v. Murphy, 82 Minn. 268, 84 N.W. 1005; Faulkner v. Davis (Ky.), 38 S.W. 1049; Ehat v. Scheidt, 17 Cal.App. 430, 120 P. 49; McGee v. Vauover, 148 Ky. 737, Ann. Cas. 1913E, 500, 147 S.W. 742; Singer Sewing Mach. Co. v. Phipps, 49 Ind.App. 116, 94 N.E. 793; Clark v. Aldenhoven, 26 Colo. App. 501, 143 P. 267.

S. L. Tipton, and E. J. Dockery, for Respondents.

"Although no damage is claimed because of the loss of employment, evidence showing that plaintiff suffered inconvenience and pain after the accident in attempting to perform his work, is competent as tending to show his physical injury and suffering." (Graham v. Coeur d' Alene etc. Transp. Co., 27 Idaho 454, 149 P. 509.)

"A judgment should never be reversed by reason of misconduct of counsel at the trial, unless the appellate court is of the opinion such misconduct has prevailing influence upon the jury to the detriment of appellant. (Theriault v. California Ins. Co., 27 Idaho 476, Ann. Cas. 1917D, 818, 149 P. 719; Burdick v. Haggert, 4 Dak. 13, 22 N.W. 589; Lee v. State, 116 Ga. 563, 42 S.E. 759; Kinna v. Horn, 1 Mont. 597; Barr v. Post, 56 Neb. 698, 77 N.W. 123; Daniel v. Weeks, 90 Mich. 190, 51 N.W. 273.)

The fact of marriage may be established by oral testimony of persons who were present at the ceremony. (8 Ency. of Evidence, 465; Wigmore on Evidence, sec. 1336; Wharton's Criminal Evidence, 10th ed., sec. 170, p. 403; Boling v. State, 91 Neb. 599, 136 N.W. 1078; Watson v. Lawrence, 134 La. 194, Ann. Cas. 1916A, 651, and note, 653, 63 So. 873, L. R. A. 1915E, 121.)

The testimony of either of the parties to the marriage is admissible to prove the marriage. (In re Richards, 133 Cal. 524, 65 P. 1034; Henry v. McNealey, 24 Colo. 456, 50 P. 37; Smith v. Fuller, 138 Iowa 91, 115 N.W. 912, 16 L. R. A., N. S., 98; Commonwealth v. Hayden, 163 Mass. 453, 47 Am. St. 468, 40 N.E. 846, 28 L. R. A. 318; Eisenlord v. Clum, 126 N.Y. 552, 27 N.E. 1024, 12 L. R. A. 836; Baughman v. Baughman, 29 Kan. 283.)

MORGAN, J. Rice, J., concurs. BUDGE, C. J., Dissenting.

OPINION

MORGAN, J.

--Respondents, husband and wife, in their complaint charged, in one count, that appellant maliciously committed battery upon the wife by striking her with his fist, and causing her to fall against the corner of a table, whereby she was permanently injured, and that the husband became obligated for medical attendance and hospital fees. The relief demanded was $ 10,000 actual damages, $ 3,000 exemplary damages, and $ 600 for the expenses mentioned. From a judgment for respondents for $ 5,000 actual damages and $ 600 because of said expenses, and from an order denying a new trial, this appeal is taken.

Appellant demurred to the complaint for the reason that it improperly united a cause of action, in favor of the husband and wife, for injuries to the wife, with a cause of action, in favor of the husband only, for expenses. The demurrer was overruled, and motions to require respondents to elect between the causes of action, and to strike, were denied.

There is some conflict in the authorities upon this point arising, largely, from broadly divergent statutory provisions in the several states governing the property rights of husband and wife, and the powers of married women as parties litigant. Approaching this question it must be borne in mind this is a community property state and has the following statutory provisions:

Sec. 2676. "All property of the wife owned by her before marriage, and that acquired afterwards by gift, bequest, or descent, or that which she shall acquire with the proceeds of her separate property, shall remain her sole and separate property, to the same extent and with the same effect, as the property of a husband similarly acquired."

Sec. 2679. "All property owned by the husband before marriage, and that acquired by gift, bequest, devise or descent is his separate property."

Sec. 2680. "All other property acquired after marriage by either husband or wife, including the rents and profits of the separate property of the husband and wife, is community property, unless by the instrument by which any such property is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and separate use; in which case the management and disposal of such rents and profits belong to the wife, and they are not liable for the debts of the husband."

The right to sue in this case was a chose in action and, by the statutory provisions above quoted, is made community property. Rev. Codes, sec. 2686, amended by Sess. Laws, 1913, chap. 105, p. 425, and by Sess. Laws, 1915, chap. 75, p. 187, provides that the husband has the management and control of the community property, except the earnings of the wife for her personal services and the rents and profits of her separate estate. He is, therefore, the only necessary party plaintiff in a case of this kind and may, in his own name, without joining his wife, sue to recover damages for her personal injuries and for expenses incurred for medical attendance and hospital fees by reason thereof. (Holton v. Sand Point Lumber Co., 7 Idaho 573, 64 P. 889; Ezell v. Dodson, 60 Tex. 331; San Antonio Street Ry. Co. v. Helm, 64 Tex. 147; Gallagher v. Bowie, 66 Tex. 265, 17 S.W. 407; Hawkins v. Front-Street Cable Ry. Co., 3 Wash. 592, 28 Am. St. 72, 28 P. 1021, 16 L. R. A. 808.)

In Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545, a case arising out of personal injury to the wife, where it was contended that damages for her loss of ability to labor could only be recovered by the husband in a separate action brought for that purpose, this court held that any damage, general or special, recovered by the husband during the marital relation for loss of time or capacity by the wife, in such a case, was community property, and incidentally stated the rule to be that both husband and wife are necessary parties. The latter holding is not the law.

In Lindsay v. Oregon etc. Ry. Co., 13 Idaho 477, 90 P. 984, 12 L. R. A., N. S., 184, it is said that the husband must be joined with the wife in a suit for damages for her personal injury, because judgment recovered, if any, would be community property. That case does not decide, and the question was not before the court, whether the husband could maintain the suit alone.

In Sheldon and Wife v. Steamship Uncle Sam, 18 Cal 526, 79 Am. Dec. 193, the supreme court of California held that the husband and wife must join in an action because of injuries sustained by her and that he must sue alone for expenses incurred thereby. The court did not discuss the community property feature of the question, nor give any reason for so holding other than that it is in accord with the common law. Following that decision that court decided, in Matthew v. Central P. R. R. Co., 63 Cal. 450, that in an action to recover damages for her personal injury the cause of action belongs to the wife, and that the cause of action for expenses growing out of the injury belongs to the husband and cannot be joined with that of...