Muir v. City of Pocatello

• Decision Date: 30 December 1922
• Citation: 36 Idaho 532,212 P. 345
• Parties: ABRAM MUIR and ELLA L. MUIR, Respondents, v. THE CITY OF POCATELLO, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

212 P. 345

36 Idaho 532

ABRAM MUIR and ELLA L. MUIR, Respondents, v. THE CITY OF POCATELLO, a Municipal Corporation, Appellant

Supreme Court of Idaho

December 30, 1922

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Action to recover damages for personal injuries. From judgment for plaintiff, defendant appeals. Affirmed.

Cause affirmed, with costs to respondents.

J. M Stevens, D. D. Mote and Ross W. Bates, for Appellant.

Abram Muir was the necessary party to the action brought by his wife on account of personal injuries suffered by her. (Labonte v. Davidson, 31 Idaho 644, 175 P. 588; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Paine v. San Bernardino Valley Traction Co., 143 Cal. 654, 77 P. 659; Paganini v. Polostrini, 26 Cal.App. 342, 146 P. 1046; Johnson v. Hendrick, 45 Cal.App. 317, 187 P. 782; Lamb v. Harbaugh, 10 Cal. 680, 39 P. 56.)

In a suit on account of personal injuries sustained by the wife the husband must be joined where the judgment, if recovered would be community property. (Lindsay v. Oregon S. L. R Co., 13 Idaho 477, 90 P. 984, 12 L. R. A., N. S., 184; McKune v. Santa Clara Valley Mill & Lumber Co., 110 Cal. 480, 42 P. 980; McFadden v. Santa Ana etc. Ry Co., 87 Cal. 464, 25 P. 681, 11 L. R. A. 252; Schneider v. Biberger, 76 Wash. 504, 136 P. 701; Moody v. Southern P. Co., 167 Cal. 786, 141 P. 388.)

The husband has the control, management and disposition of the community property. (Labonte v. Davidson, supra; Paganini v. Polostrini, supra; Ostheller v. Spokane, E. I. E. R. Co., 107 Wash. 678, 182 P. 630; Hammond v. Jackson, 89 Wash. 510, 154 P. 1106.)

A wife living with her husband at the time of the injury cannot bring an action for personal injuries sustained by her in her own name without joining her husband as a party. (Tell v. Gibson, 66 Cal. 247, 5 P. 223; Mackey v. Northern Mill Co., 210 Ill. 115, 71 N.E. 448; Missouri, K. & T. Ry. Co. v. Bagley, 65 Kan. 188, 69 P. 189, 3 L. R. A., N. S., 259; Liphart v. Myers, 97 Kan. 686, 156 P. 693; In re Louisell Lumber Co., 209 F. 784, 126 C. C. A. 508; 1 Ency. of Pleading & Practice, 473; McAndrews v. Chicago, L. S. & E. Ry. Co., 222 Ill. 232, 78 N.E. 603; Chicago City R. Co. v. Leach, 182 Ill. 359, 55 N.E. 334; Bahr v. National Safe Deposit Co., 234 Ill. 101, 84 N.E. 717; Keppler v. Becker (Ariz.), 80 P. 334.)

McDougall & Jones, for Respondents.

In an action brought by a married woman in her own name for injuries to herself, an amendment to the complaint by adding her husband as a party plaintiff relates back to the time of the filing of the original complaint and does not change the issue nor state a new or different cause of action. (Idaho Trust & Savings Bank v. N. & M. Irr. Co., 29 Idaho 659, 161 P. 872; Missouri K. & T. Ry. Co. v. Wulf, 226 U.S. 570, Ann. Cas. 1914B, 134, 33 S.Ct. 135, 57 L.Ed. 355; Wilson v. Denver & R. G. Ry. Co., 68 Colo. 105, 187 P. 1027; Cowan v. Atchison T. & S. F. Ry. Co., 66 Okla. 273, 168 P. 1015; Harlan v. Loomis, 92 Kan. 398, 140 P. 845; Slayer v. Consolidation Coal Co., 246 F. 794; Bixler v. Pennsylvania Ry. Co., 201 F. 553; Nashville C. & St. L. Ry. Co. v. Anderson, 134 Tenn. 666, 185 S.W. 677; Cincinnati, N. O. & T. P. Ry. Co. v. Bonham, 130 Tenn. 435, 171 S.W. 79; American R. R. Co. v. Birch, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 879; Weaver v. Iselin, 161 Pa. 386, 29 A. 49; Pennsylvania Co. v. Sloan, 125 Ill. 72, 8 Am. St. 337, 17 N.E. 37; Sublett v. Hodges, 88 Ala. 491, 7 So. 296; Bray v. Creekmore, 109 N.C. 49, 13 S.E. 723; Orchard v. Wright & Co. (Mo.), 197 S.W. 42; Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240.)

Contributory negligence is a question for the jury where the material facts bearing on the same are conflicting or where on undisputed facts fair-minded men may reach different conclusions. (Fleenor v. Oregon S. L. R. R. Co., 16 Idaho 781, 102 P. 897; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Calkins v. Blackwell Lumber Co., 23 Idaho 128, 129 P. 435; Tucker v. Palmberg, 28 Idaho 693, 155 P. 981; Wheeler v. Oregon R. R. Co., 16 Idaho 375, 102 P. 347; Ryan v. City of Chicago, 187 Ill.App. 163, 13 N.C. C. A. 534; Robinson v. City of Oconto, 154 Wis. 64, 142 N.W. 125; City of Natchez v. Lewis, 90 Miss. 310, 43 So. 471.)

LEE, J. McCarthy, and Dunn, JJ., concur, RICE, C. J., concur in the result.

OPINION

LEE, J.

This action was instituted by respondent Ella L. Muir on February 5, 1918, to recover from appellant, City of Pocatello, a municipal corporation, damages on account of an alleged injury to her person, suffered on January 18, 1917. The complaint alleged that the municipality was in the exclusive control of the streets, sidewalks and avenues within its limits, and that the injury occurred upon a public thoroughfare within said city, at a point known as No. 500 East Center Street. The negligence alleged to have caused the injury was in the city permitting a depression of about seven inches and approximately five feet long in said sidewalk to become rough, uneven and sloping, that it carelessly allowed the same to exist for a great length of time, that the same was in a dangerous condition because of the city having allowed snow to fill up and freeze over said defect in the walk, and that while she was in the exercise of due care and without fault or negligence, respondent walked over and upon said sidewalk, and because of its defective condition and the accumulation of snow thereon, fell, by reason of which she was seriously and permanently injured, and as a result thereof was confined to her house and was unable to walk, and would be permanently injured because of said accident.

Appellant answered her complaint, admitting its corporate existence and control of its highways, but denied knowledge of the defective condition of the sidewalk, and in effect denied all other material allegations in the complaint.

The cause came on for trial January 21, 1920, more than three years after the date of the accident. During this trial, the evidence disclosed that respondent was then, and had been at the time of the accident, a married woman, living with her husband, Abram Muir. Appellant city thereupon asked leave to amend its answer, which it did by setting up Mrs. Muir's coverture, which amendment respondent moved to strike. The motion was denied, and she then asked permission to amend her complaint by adding the name of Abram Muir as a party plaintiff, to which appellant objected on the ground that such amendment substituted a new cause of action against which the statute of limitations had run as against Abram Muir. Respondent asked leave to further amend by alleging that respondent, Abram Muir, for a consideration, had transferred and assigned to Ella L. Muir all of his right and interest in and to the cause of action against appellant, the same to be her sole and separate property and for her sole and separate use. The court allowed respondent to amend in both particulars, discharged the jury and continued the further hearing of the cause.

Before the second hearing, which was had a year later, respondents filed a new complaint, setting up the same cause of action pleaded in the original complaint, with the addition of the foregoing amendments, to which appellant demurred on five distinct grounds: (1) that the complaint failed to state facts sufficient to constitute a cause of action; (2) that it shows upon its face that it is barred by subd. 4 of C. S., sec. 6612; (3) that it attempted to create a cause of action where none existed, because of the nonjoinder of respondent Abram Muir in the original complaint and the consequent running of the statute of limitations; (4) that it did not state a cause of action on behalf of respondent Ella L. Muir; (5) that respondent Abram Muir had failed to commence his action until the statute of limitations had run against him. Appellant also moved to strike the complaint for reasons similar to those set up by the demurrer. All of these pleas being overruled, appellant set up by way of answer the married relation of respondents, and alleged that Abram Muir was a necessary party to the original complaint. At the second trial, appellant interposed objections to the introduction of any testimony, for reasons similar to those stated in its assignments, which were overruled. The trial proceeded, and at the conclusion of the taking of respondents' evidence, the objections were renewed and again overruled. The jury returned a verdict in favor of respondent in the sum of $ 8,000, from which verdict and the judgment entered thereon this appeal is taken.

Appellant assigns numerous errors, predicated upon the court having permitted the complaint to be amended by bringing in the husband, Abram Muir, as a party plaintiff, more than three years, after the happening of the injury complained of, and after the lapse of the statutory period for the bringing of this class of actions. It also assigns as error the refusal of the court to instruct a verdict for appellant, for the reason that respondent Ella L. Muir's testimony showed that she had been guilty of contributory negligence, which contributed to the injury complained of and without which it would not have happened, and that because of such contributory negligence she cannot recover.

Counsel for both parties to the action have ably and exhaustively presented their views and the authorities which they contend support their respective positions. We have examined the same, but by reason of their great number, particularly those bearing upon the right of respondent to amend her complaint after the lapse of the statutory period and bring in her husband, it will not be practicable within the limits of this opinion to refer to all of them.

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