Norfolk & W. R. R. Co. v. Prindle

• Decision Date: 24 June 1886
• Citation: 82 Va. 122
• Court: Virginia Supreme Court
• Parties: N. & . W. R. R. CO. v. PRINDLE AND WIFE.

82 Va. 122

N. & . W. R. R. CO. v. PRINDLE AND WIFE.

Supreme Court of Appeals of Virginia.

June 24, 1886

Error to judgment of circuit court of Wythe county, rendered 26th of September, 1885, in the action of trespass on the case wherein Lee Prindle and wife were plaintiffs, and the Norfolk and Western Railroad Company was defendant.

The object was to recover damages inflicted on the wife by the negligence of the defendant company. The jury found for the plaintiffs, and assessed their damages at $1,000, and the court entered up judgment in accordance with the verdict. At the trial the wife was allowed to testify for the plaintiffs against the objection of defendant. Exception was taken to this and other rulings, and a writ of error and supersedeas was obtained by the defendant from one of the judges of this court.

Opinion states the case.

William H. Bolling, for the plaintiff in error.

James A. Walker, for the defendants in error.

This was an action of case brought by a husband and wife for injuries received by the wife while a passenger on defendant's road. On the trial the wife was examined as a witness on behalf of the plaintiff, and the question of her competency is the first one raised by the record. Such a suit can only be asserted by a joint action. Mr. Minor says, on page 348 of volume I: " There is but one instance where a cause of action, which affects the wife and accrues during coverture, must be asserted by a joint suit, viz: in cases of torts to the person of the wife."

The effect of joining the wife is that if the husband die while the suit is pending, or before the judgment is satisfied, the interest in the subject will survive to the wife, and not to the personal representative of the husband. 1 Minor, pages 352, 356; Schouler on Husband and Wife, sections 142, 328.

At common law the wife is entitled to the beneficial interest in damages for torts to her person. She is the meritorious cause of action, and the husband is only entitled to an interest on the contingency of his reducing the money into possession in his lifetime. The suit is the suit of the wife, and the husband is only joined for conformity. The wife is the party in interest, and the judgment, when rendered, is her judgment, and survives to her and to her personal representatives, and not to her husband or to his representatives. By the rules of the common law, neither the husband and wife were competent witnesses, because both were parties plaintiff, and because the marital relation prohibited one consort from testifying for the other. The statute has removed the first of these impediments and left the second in force. The wife or husband may testify in any suit in which they are parties, in their own favor but not for or against each other. It is clear that in this case the husband or wife one is a competent witness, but that both are not. The circuit court held that the wife was a competent witness, and in that it committed no error.

Even independent of the " married women's act," we think the statute removing all disqualification on account of the interest of a witness and allowing parties to testify in their own suits, made the wife a competent witness in this case, since she is the real party plaintiff, and since the action survives to her and not to her husband's representatives, and since the action dies with her, if she die before her husband and before recovery.

In this case the original declaration contained a claim for damages for the doctors' bills paid by the husband and for damages to the husband for loss of the society and services of the wife. There was a demurrer on the ground that these things were for damages to the husband--were the subject of a separate suit in his own name--and could not be joined in a suit by the husband and wife for injuries to her person; and the demurrer was properly sustained for these reasons.

But under the married woman's law, it is provided that all real and personal property acquired by any woman, " whether by gift, grant, purchase, inheritance devise, or bequest, shall be and continue her sole and separate estate." The word pur chase is a technical common law word, as are the words gift, grant, devise, and inheritance. They are technical legal common law phrases, having definite ascertained meanings, and must be taken in the sense and given the construction in which they are used at common law by lawyers, and judges, and text writers of authority. Dwarris on Statutes, 637, 640, 612; Carpenter v. The State, 34 Am. Dec. 116-41, 107-8. The word purchase is a technical common law word, and means all other methods of acquiring property except by descent or inheritance. 2 Minor 476-7.

The statute, commonly called the married women's act, should be given a liberal, and not a narrow construction, in order to carry out the evident intent and meaning as well as the policy of the legislature.

OPINION

LACY, J.

In February, 1885, the defendants in error brought their action of trespass on the case against the plaintiff in error for injuries received by the defendant in error, Judy Prindle, while traveling on the road of the plaintiff in error.

The action is by husband and wife, against a common carrier for injuries inflicted on the wife by the negligence of the defendant company. Upon the trial there was a verdict for the plaintiff for one thousand dollars, and judgment accordingly. Upon writ of error to this court, it is assigned as error--first, that the action being as stated above, and the recovery belonging to the husband, the wife was admitted as a witness in the case, and permitted to testify notwithstanding the interest of her husband. On the other hand, it is insisted that the husband has no interest in the suit, but is joined for conformity only; that the interest of the wife does not disqualify her under our act, notwithstanding such interest. Code 1873, ch. 172, sections 21-22. That while under that statute the common law rule as to the incompetency of husband and wife to testify for or against each other is expressly preserved; that the husband could not testify because of the interest of the wife; that while she is competent to testify, notwithstanding her own interest, she would not be competent to testify if her husband had any interest in the suit, but that her husband having no interest, she is not excluded as a witness.

In the case of Hayes and Wife v. Mutual Protection Association, 76 Va. 228, this question was considered and discussed by this court in a case arising as the suit of the wife under the act known as the married women's act, approved April 4, 1877 Acts 1876-7, p. 333-4), in which this court held the wife competent to testify, because it was her suit to recover her separate property, and that her husband had no interest, and was a nominal party only, joined in obedience to the statute, but having no interest and not liable for costs.

In a late case of Farley v. Tillar, 81 Va. 275, this court held that in a suit against a wife who was engaged on her own account in keeping a hotel, her husband was joined in obedience under statute cited above, known as the married women's act, that he was a nominal party only, had no interest in the subject matter of the suit, and that while the husband could not testify because of the interest of the wife, she was not disqualified because of her interest in the suit, by reason of the 21st and 22d sections, of chapter 172, of the Code of 1873, cited above, and not because of her husband's supposed interest, because, under our statute, it was her separate estate, and her husband had no interest.

In the first named case, the subject of controversy was on a policy of insurance, and the amount payable to the beneficiary, who was a married woman, was held to be the property of such married woman for her sole and separate use; that it was not liable to the debts of her husband; that he had no interest in it whatever under the act approved April 4, 1877, Session Acts 1876-7, p. 333-4.

In the second named case cited above, the action was against the wife for alleged liabilities as a sole trader, and the husband was held to have no direct interest in the suit, and to be a nominal party only, and in both, as has been said, the wife was allowed to testify. See also Frank and Adler v. Lilienfeld, 33 Gratt. 377.

These cases seemed to have been covered by the terms of our statute. We must now consider whether, under the said married women's act, the recovery in this case is the sole and separate property of the wife. The property right involved is the chose in action of the wife; so far as a claim for damages is for injuries to the person of the wife, it must be recovered in the joint suit of the husband and wife. It is her suit. But if it is brought during the lifetime of the husband, he must be made a plaintiff with her. It is a suit for the recovery of her damages; when the judgment is recovered, it becomes her chose in action. When the money is paid it is his unless by the statute above referred to, known as the married women's law, it is made her separate estate. If it is by the said act made her separate estate then the husband has no legal interest whatever in it, and she is not debarred from testifying in a suit concerning it by reason of any interest of his; and he is a party to the suit only nominally, being joined for conformity, the statute so requiring. While on the other hand, if the statute does not so affect it as to make it the separate estate of the wife, the rights of the husband attaching, the wife would be debarred, under the common law rule of evidence, not...