Northern Cent. Ry. Co. v. Mills

• Decision Date: 21 February 1884
• Citation: 61 Md. 355
• Parties: THE NORTHERN CENTRAL RAILWAY COMPANY v. ALFRED W. MILLS and Margaret E. Mills.
• Court: Maryland Court of Appeals

61 Md. 355

THE NORTHERN CENTRAL RAILWAY COMPANY v. ALFRED W. MILLS and Margaret E. Mills.

Court of Appeals of Maryland

February 21, 1884

Appeal from the Superior Court of Baltimore City.

The case is stated in the opinion of the court. The record first sent to the Court of Appeals, contained only the pleadings and the verdict, the motion in arrest, and the action of the court thereon; the entry of judgment, and the order for an appeal; and an entry showing that the appellant had filed an appeal bond which was approved, and an affidavit that the appeal was not taken for delay. The appellant procured a writ of diminution under which there were sent up from the court below short copies of the docket entries in this case, and in a case brought by the husband alone against the same defendant, and an instruction given in each case.

The cause was argued before Alvey, C.J., Yellott, Stone, Miller Robinson, and Bryan, JJ.

Bernard Carter, for the appellant.

John T. McGlone and Richard M. Venable, for the appellees.

Miller J., delivered the opinion of the court.

This appeal brings up for review the action of the Superior Court in overruling a motion in arrest of judgment. The ground of the motion is, that in the action by husband and wife for personal injuries suffered by the latter, and for which both must join in the suit, the declaration includes also a cause of action for which the husband should sue alone. In determining such a question this court is, of course, confined strictly to the record proper of the case itself, and we can therefore take no notice of any of the extrinsic matters contained in the diminution record. Gover v. Turner, 28 Md. 606.

The suit was brought on the 8th of April, 1882, by Alfred W. Mills and Margaret E. Mills, his wife. The declaration, which contains but a single count, avers, in substance, that the defendant, by its agents and servants, so negligently and carelessly moved a train of cars drawn by horses along its tracks at the corner of Monument and North streets, in the City of Baltimore, where the plaintiff Margaret with her husband was, at the time, crossing, that she, the said Margaret, in order to escape from being run over, was forced to leap from the track, and thereby sustained a fracture of the ankle, and was greatly hurt, bruised, and wounded, and became sick, sore, lame, and disordered, and so continued for a long space of time during which she, thereby, suffered and underwent great pain, and was hindered and prevented from performing and transacting her necessary affairs and business, "and also, thereby, the said plaintiffs were forced and obliged to, and did pay, lay out and expend a large sum of money in and about endeavoring to cure the said Margaret of the bruises, wounds, sickness, soreness, lameness, and disorder aforesaid, occasioned as aforesaid;" and the plaintiffs claim $10,000. The defendant pleaded that it did not commit the wrong alleged. The case was tried upon issue joined on that plea, and the jury rendered a verdict in favor of the plaintiff for $2000 damages.

When this suit was instituted there was no statute regulating such actions, and according to the common law husband and wife must join if the action be brought for personal suffering or injury to the wife, and in such case the declaration ought to conclude to their damage, and not to that of the husband alone, for the damages will surive to the wife if the husband die before they are recovered. But in every such case care must be taken not to include in the declaration by the husband and wife any statement of a cause of action for which the husband alone ought to sue; therefore, after stating the injury to the wife, the declaration ought not to proceed to state any loss of assistance or expenses sustained in curing her. I Chitty's Pl. 83; R. R. Co. v. Kemp, 61 Md. 74. In our opinion, the declaration in the present case offends this rule of good pleading. After stating the injury to the wife and her sufferings therefrom, it goes on to allege that the plaintiffs were thereby obliged to, and did expend a large sum of money in effecting or endeavoring to effect her cure, and the claim for damages is general. For money thus expended the right of action is in the husband alone. There is no averment that it was paid by the wife out of, or that its payment had been charged upon, her separate estate, or that she had united with her husband in any written obligation or contract to pay it. The most that can be inferred from the allegation that the money was paid by the "plaintiffs," is that it was paid by both, that is part by the wife and part by the husband, and there can be no question but that for so much as was paid by him, he, alone, ought, to sue. It was therefore a mistake on the part of the pleader to include in this declaration a cause of action for which the husband alone ought to have sued.

What then is the consequence of this mistake, and how can it be availed of by the defendant? In 1 Chitty's Pl. 85, the law is thus stated: "If the wife be improperly joined in the action, and the objection appear from the declaration, the defendant may, in general, demur, move in arrest of judgment, or support a writ of error; though we have seen that after verdict the mistake may sometimes be aided by intendment." Direct authorities upon the subject are comparatively few, and this, no doubt, arises from the fact that such mistakes have very rarely been made. It appears to be well settled, however, that if in an action ex delicto by husband and wife, the declaration sets out in one count a cause of action for which both must join, and in another a cause of action for which the husband alone can sue, and there is a general verdict, a motion in arrest must prevail. This seems to be the result of the decisions in Barnes v. Hurd, 11 Mass. 59, and in the analogous cases of Corner v. Shew, 3 M. & W. 350, and Kitchenman v. Skeel, 3 Exch. 48. So also where the declaration in one or several counts states causes of action for all of which the husband alone can sue. Saville v. Sweeny, 4 Barn. & Ad. 514. But where in like cases courts have had to deal with a single count in which a similar mistake has been made, the decisions have been different, and we have found no such case in which an arrest of judgment has been allowed.

In Russell v. Corne, 2...