McLimans v. City of Lancaster

• Decision Date: 01 June 1885
• Citation: 23 N.W. 689,63 Wis. 596
• Parties: MCLIMANS v. CITY OF LANCASTER.
• Court: Wisconsin Supreme Court

63 Wis. 596

23 N.W. 689

MCLIMANS

v.CITY OF LANCASTER.

Supreme Court of Wisconsin.

Filed June 1, 1885.

Appeal from circuit court, Green county.

This action was commenced December 13, 1880, to recover damages for personal injury happening to the plaintiff on the evening of July 7, 1879, by reason of a defective sidewalk on the north side of Dewey street, in the defendant city. The complaint was in the usual form in such cases. The answer admitted the incorporation of the city, the existence of the street, and the service, September 11, 1879, of the notice of the injury, the time and place of its occurrence, and the defect in the sidewalk, but denied each and every other allegation of the complaint. September 6, 1881, the venue was changed, on the ground of the prejudice of the circuit judge, from Grant to Green county, where the cause was tried, and a verdict of $2,000 rendered in favor of the plaintiff, March 16, 1882, which verdict was, on motion of the defendant, set aside by the circuit court for Green county, March 21, 1882, and an order entered accordingly, which order was affirmed by this court. 57 Wis. 297;S. C. 15 N. W. REP. 194. On the cause being remanded, it was retried in March, 1884, and a special verdict rendered in favor of the plaintiff and against the defendant, to the following effect:

(1) There was a broken plank in the sidewalk on the north side of Dewey street, in the city of Lancaster, in front of the Ward lot, on the evening of July 7, 1879, through which the plaintiff stepped on that evening, and was thrown down and injured. (2) The broken plank had remained in that condition for three weeks prior to that time. (3) The city authorities, by the exercise of reasonable diligence, could have discovered and repaired the same after it was broken, and prior to the injury. (4) The plank where the plaintiff was injured was broken before July 4, 1879. (5) The city authorities, by the exercise of reasonable diligence, could have discovered the broken place and repaired it, prior to the evening of July 7, 1879. (6) It was about 69 feet east of the south-west corner of the Ward lot where the plaintiff fell and was injured on that evening, or near the second maple tree. (7) The plaintiff was in the exercise of ordinary care at the time she fell and was injured. (8) The sidewalk in question was not in the business part of the city, but was used by the public. (9) There was not a great deal of travel on it at and prior to the time of the alleged accident, except at times of using the fair ground. (10) We have no proof that the plaintiff knew of the defect in the sidewalk where she claims to have been injured, prior to the time of receiving her injury. (11) The plaintiff sustained damages, in consequence of the injuries she received at the time and place and on the occasion in question, to the amount of $8,000. (12) We, the jury, find for the plaintiff, and assess her damages at the sum of $8,000.

Thereupon the defendant moved the court upon its minutes to set aside the verdict, and for a new trial, by reason of the rulings made and exceptions taken; and because the verdict was contrary to the evidence, and the damages excessive. The motion was overruled, and, from the judgment entered upon the verdict, the defendant brings this appeal.

W. E. Carter and A. R. Bushnell, for respondent.

Clark & Mills, for appellant.

CASSODAY, J.

Precluded by circumstances from hearing the oral arguments, I have the more thoroughly examined the printed case and the briefs of the respective counsel, and by so doing have been led to the same conclusions as the other members of the court who did have the pleasure of listening to such arguments.

1. It is urged that, as the plaintiff had a husband living at the time of the injury, and also when the action was commenced, and as both occured prior to the enactment of chapter 99, Laws 1881, the plaintiff cannot maintain this action in her own name alone. The contention is that, as the law then stood, the husband, as well as the wife, was a necessary party to the action, and might control it, and that the damages recoverable belonged to the husband, and not to the wife, and could in no sense be regarded as her separate property. In support of this contention, counsel cite and rely upon Shanahan v. Madison, 57 Wis. 278-281;S. C. 15 N. W. REP. 154. Such, undoubtedly, is the doctrine of that case, and the cases there cited. Had the defendant in time raised the question of the defect of parties by the necessary plea in abatement, the plaintiff would have been compelled to amend her complaint by making her husband a party plaintiff with herself. But, no such plea having been made, the objection of a defect of parties merely, was thereby waived, and hence is no longer available. Section 2654, Rev. St.; Hallam v. Stiles, 61 Wis. 272; S. C. 21 N. W. REP. 42.

Still, independent of the law of 1881, the question would recur whether the wife could maintain such action in her own name, when the right of action could not be regarded as her separate property, and the amount recoverable would have belonged to the husband alone? It has recently been held in England, in a similar case, that while such plea in abatement would have been available, the same would not have been available as a plea in bar. Welden v. Winslow, 13 Q. B. Div. 786. “For such a cause of action,” said BRETT, M. R., in that case, “no action could ever have been brought by the husband alone without joining his wife as a plaintiff. * * * The injury to the wife was the meritorious cause of action, and if she had died before the commencement of the action the husband would not have been entitled to sue. If damages should be given, they would belong, in the first place, to the wife alone, and if they should not be reduced into possession by the husband, and he should die, the damages would be hers, and would not go to his executors.”

It is to be remembered that the right of action was and is purely statutory. Section 1339, Rev. St. No action would lie for such an injury at common law. Stilling v. Town of Thorp, 54 Wis. 532; S. C. 11 N. W. REP. 906. The right of action in this case, having been given by statute, might have been entirely taken away by statute, even after the action was commenced. Dillon v. Linder, 36 Wis. 344;Rood v. Railway Co. 43 Wis. 146;State v. Stone, Id. 481; Smith v. Railway Co. Id. 686. Under our statute neither the husband nor the husband and wife jointly could have assigned such a right of action. Section 4253, Rev. St. Randall v. Telegraph Co. 54 Wis. 140;S. C. 11 N. W. REP. 419;Kusterer v. Beaver Dam, 56 Wis. 477;S. C. 14 N. W. REP. 617;Lamont v. Washington & G. R. Co. 47 Amer. Rep. 276. Such being the state of the law at the time chapter 99, Laws 1881, was enacted, there would seem to be no constitutional prohibition against the legislature taking from the husband all right of participation in the right of action, and giving the same entirely to the wife, to be recovered in her name alone. This being so, and the meritorious cause of action having always been in the wife and never in the husband alone, it would seem that the effect of the statute was merely to take from the husband the former right of being made a party, and of control and subsequent acquisition and appropriation, and to clothe the wife with full capacity to commence, prosecute, and control the action in her own name alone, and to collect and appropriate to her own use any judgment that might be recovered. In other words, the act went to the remedy,--the capacity of the wife and the incapacity of the husband,--without in any way affecting the cause of action itself. True, this construction gives to the statute a retroactive effect, but only as to the remedy.

Such a construction of a similar act was expressly sanctioned in Weldon v. Winslow, supra. In that case the injury to the wife was prior to the passage of the act, but the action was not commenced until after the act went into effect, and it was held that by virtue of the act she could maintain the action in her own name alone. It follows that although the plaintiff could not, as against the defendant's objection, have maintained the action in her own name alone prior to chapter 99, Laws 1881, yet that she could so maintain it after that enactment. These things being so, we think the objection comes too late,--especially as it is made in this court for the first time. The case is quite analogous to an action brought by an infant in his own name alone, and where no objection is made until after he becomes of age, when the objection is no longer available. Hepp v. Heufner, 61 Wis. 150, 151;S. C. 20 N. W. REP. 923. The enactment in question became a law before the first trial. For the reasons given we must hold that the plaintiff had the requisite capacity to maintain the action in her own name alone at the time of the last trial.

2. The several exceptions taken to the exclusion of evidence seem to be without merit. The inquiry of the plaintiff, on her cross-examination, as to whether she made the oath or affidavit of prejudice for the change of venue, was upon a matter entirely collateral and foreign to the issue on trial, and hence was properly excluded. The same is true with respect to the inquiry of her, on cross-examination, as to whether the title to the house was in her or her husband. Besides, it was not proper cross-examination, and she afterwards was permitted to be thus examined. The same is true with regard to having dances and selling whisky in the house, and its being disorderly. The court excluded this question put to the plaintiff on her cross-examination: “Is there any arrangement between you and your counsel that they shall have a certain portion of what you recover against the city?” Had the plaintiff answered the question in the affirmative, it would not have disclosed a champertous agreement within the rule established by this court. Ryan v....