Norfolk & W. R. Co v. Dougherty Et Ux
| Decision Date | 12 December 1895 |
| Citation | 23 S.E. 777,92 Va. 372 |
| Court | Virginia Supreme Court |
| Parties | NORFOLK & W. R. CO. v. DOUGHERTY et ux. |
Action by Married Woman—Misjoinder of Husband—Application of Statute. 1. As Code, § 2281, makes damages for a wrong sustained by a married woman her sep arate estate, and section 2288 provides that a married woman may sue as if she were unmarried as to matters connected with her separate estate, the husband is an improper party to an action by his wife for personal injuries, and for the destruction of a horse and buggy owned by her.
2. Acts 1893-94, p. 489, providing that, where there has been a misjoinder of parties, the court may order the action to abate as to any party improperly joined, and to proceed as if such misjoinder had not been made, cannot be invoked after an action has been decided.
Error to corporation court of Norfolk.
Action by Charles E. Dougherty and wife against the Norfolk & Western Railroad Company for damages for personal injuries sustained by said wife and to her property. Plaintiffs had judgment, and defendant brings error. Reversed.
Sharp & Hughes and W. J. Robertson, for plaintiff in error.
W. N. Portlock and John Neely, for defendants in error.
This action is brought by Charles E. Dougherty and Ella F. Dougherty, his wife, the husband suing in the right of his wife, against the Norfolk & Western Railroad Company, to recover damages for.injuries sustained by the female plaintiff, in a collision with the defendant company's engine and cars, while driving in her buggy on a highway across the company's railroad, at a public crossing, near Norfolk.
The declaration alleges that the horse and buggy were destroyed; that the female plaintiff received serious personal injuries, and sustained great loss by being prevented for some time thereafter from transacting and attending to her lawful business.
The evidence shows that Mrs. Dougherty was the proprietress of an hotel, conducting that business on her own account; that the horse and buggy used on the occasion were her property. And section 2284 of the Code makes damages for a wrong sustained by a married woman her separate estate. So that all the damages sought to be recovered in this case constituted the wife's separate estate, which, under the express terms of the married woman's law, found in chapter 103 of the Code, is declared to be her absolute property, and not subject to the use, control, or disposal of her husband.
The first question raised by the pleadings in the case is whether or not the joinder of the husband with the wife in this action is error for which the verdict in favor of the wife must be set aside.
The action for a tort must, in general, be brought in the name of the person whose legal right has been affected, and who was legally interested in the property at the time the injury thereto was committed; for he is impliedly the party injured by the tort, and whoever has sustained the loss is the proper person to call for compensation from the wrongdoer. And an action for an injury to the absolute rights of a person, as for batteries, wounding, etc., can only be brought in thename of the party immediately injured, and, if he die, the remedy determines. 1 Chit. Pl. (16th Ed.) p. 69. Under our statute, the action in this case-would survive to the personal representative of the injured party.
As we have already seen, the legal right of the wife was alone affected here, and she alone...
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