Quick v. Miller

• Decision Date: 16 April 1883
• Citation: 103 Pa. 67
• Parties: Quick <I>versus</I> Miller.
• Court: Pennsylvania Supreme Court

103 Pa. 67

Quick versus Miller.

Supreme Court of Pennsylvania.

March 16, 1883.

April 16, 1883.

March 16th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas of Susquehanna county: Of January Term 1883, No. 80.

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Blakeslee & Davies, for plaintiff in error.—The husband is liable for the torts of his wife, since, as well as before the Act of 1848: Keen v. Hartman, 12 Wr. 497. The proviso of that Act expressly acknowledges such liability. There is no authority for requiring a declaration in slander to state that the words were spoken by the wife without the direction and not in the presence of her husband. At any rate, a defect in form in a declaration, amendable in the court below, is cured by the verdict: Folkard's Starkie on Slander, page 748, § 748; Kelsey v. National Bank, 69 Pa. St. 426.

McCollum & Watson (with whom were W. H. & H. C. Jessup), for defendants in error.—The writ should be quashed because the total amount "of costs accrued" is in excess of the recognizance: Act of June 8th 1881. The intention of the legislature was to discourage the removal of causes, except upon penalty of paying, upon affirmance, all the costs that have accrued. An action of slander would lie against a husband and wife, for slanderous words spoken by the wife, before the Act of 1848, because by marriage the husband acquired absolute control over the personal property of the wife, and even over her person to the extent of corporal punishment. But by that Act the husband's rights in his wife's property were taken away, and with them the reason for his liability for her debts and torts. The proviso to the Act of 1848 does not designate what torts are referred to, and we submit that it is a proper question for judicial decision to determine, whether slander or only trespasses are intended. The declaration should have averred the absence of the husband when the words complained of were spoken by the wife, and the omission to do this is such a defect in substance as is incurable by a verdict: Say. 282; Arch. Pl. 166; 2 Salk. 662. This is in analogy to the form of pleading required under the Act of 1848 in reference to actions for necessaries: Murray v. Keyes, 35 Pa. St. 384.

Mr. Justice TRUNKEY delivered the opinion of the court, April 16th 1883.

The plaintiff in the declaration, "complains of Susan Miller and L. B. Miller, her husband, the defendant in this suit," for that the said Susan Miller did speak, utter and publish certain false, scandalous and defamatory words of and concerning the plaintiff. Each count avers that the defamatory words therein set forth, were spoken and published by the said Susan Miller, but does not allege that said words were uttered without the direction and not in the presence of her husband, said L. B. Miller. The defendants pleaded, "Not guilty, with leave to justify." A verdict was rendered for the plaintiff, and judgment arrested as to L. B. Miller, for the reasons: 1. That the declaration fails to show that the words were spoken by Susan Miller in her husband's absence and without his direction; and, 2. That the declaration shows no cause of action against L. B. Miller.

1. The action was against husband and wife for a tort; if the tort of the wife, her husband was a necessary party; if the tort of the husband, his wife was improperly joined; and if she did the act in her husband's presence, prima facie, he was alone liable. In all the counts it is averred that the defendant, said Susan Miller, did the wrong complained of; her husband is joined in the suit, but is not charged with having committed the injury. It was necessary to prove that the wife uttered the words in the absence of her husband, so far as appears in this case. Had they been uttered in his presence and against his will and power of restraint, the case would be different. Conceding that the fact of the husband's absence when his wife uttered the words, ought to have been averred in the narr., the omission is cured by the verdict: Weinberger v. Shelly, 6 W. & S. 336. There, the action was for malicious prosecution and the declaration contained no averment that the prosecution was commenced without probable cause. This court approved the rule that, "Where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict by the common law." And "after verdict it will be presumed everything was done at the trial which was necessary to support the action, unless the contrary appears on the record." In an action for malicious prosecution it is quite as essential to aver and prove want of probable cause for the prosecution, as, in an action for slander by words spoken by the wife, to aver and prove absence of her husband. Then it must be taken as settled that after a trial upon the merits, such an omission, whether in substance or form, will not defeat the verdict. The justice of the rule is illustrated by this case, which had already been tried twice before a jury, and the omission could not have misled or prejudiced the defendants. To the declaration they pleaded in effect, that Susan Miller did not utter the words as charged, but should it be proved that she did, they would establish the truth of said words. And now L. B. Miller, in his history of the case, insists the verdict was wrong because the jury did not find, from the evidence given in justification, that the words expressed the truth. Here, the point for consideration arises upon the record, not upon the conflict of testimony or...