Read v. Stewart

• Citation: 129 Mass. 407
• Parties: Elizabeth E. Read v. John E. Stewart
• Decision Date: 13 September 1880
• Court: United States State Supreme Judicial Court of Massachusetts

129 Mass. 407

Elizabeth E. Read v. John E. Stewart

Supreme Court of Massachusetts

September 13, 1880

Suffolk. Tort on the Gen. Sts. c. 85, §§ 1, 2, to recover treble the amount of money alleged in the first count of the declaration to have been lost by George W. Read within one year, by gaming with the defendant, and in the second count to have been lost by the said Read, by gaming in a house occupied by the defendant, in which money was lost at gaming with his knowledge. Both counts alleged that said Read had not prosecuted an action therefor within three months of the loss. Writ dated October 5, 1878. The answer contained a general denial, and alleged that the action was not brought by the plaintiff, in good faith, for her own use, but for the benefit of her husband, the said George W. Read, or by the said George W. in the name of his wife; and that the plaintiff was a married woman, and the action was not concerning her separate property.

At the trial in the Superior Court, before Wilkinson, J., it was admitted that the plaintiff was the wife of George W. Read and there was evidence tending to show that he lost the money by gaming, as alleged; that he did not prosecute therefor within three months of the loss, and that the plaintiff brought and prosecuted this action herself.

The defendant asked the judge to rule as follows: "1. The wife of the loser of money or goods by unlawful gaming, which he has not himself prosecuted for within three months of the loss, cannot maintain an action of tort upon the Gen. Sts. c 85, §§ 1, 2, for treble the value of the money or goods so lost. 2. The plaintiff, being the wife of George W. Read, who lost by gaming the money mentioned in the declaration, cannot maintain this action for treble the amount so lost."

The judge declined so to rule; and instructed the jury as follows: "The first inquiry is whether the plaintiff can maintain this action. It is contended that she is the wife of the losing party, and that the action in reality is brought by him. The statute provides that treble the value of the money lost may be recovered (provided the party who lost it does not bring an action within three months) by any person who shall afterwards bring the action; so that if this action was brought by George W. Read, the loser, it was not brought within the period of limitation. The action is in the name of the wife, who, it is contended, is the plaintiff in this case. On the part of the defendant it is contended that she is merely the nominal plaintiff; that the action is in fact her husband's, and is brought by him, though her name is used, and that is the first inquiry which you are to make. His wife may bring the action as well as anybody else. If she brings the action herself, the mere fact that she is the wife of the party who lost does not preclude her from bringing this action, if it is brought by her in good faith. The simple fact that he has somewhat assisted her or advised her in reference to this action, merely aiding her in the prosecution of the action, would not prevent her right to recover. But if he instituted the action and carries it on, using her name, then it is substantially his action, and would be the same as though it was brought in his name. It will be for you to say, upon all the facts, whether it is her action or his action."

The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

Exceptions overruled.

J. S. English, for the defendant. The Gen. Sts. c. 85, §§ 1, 2, so far as they authorize any person other than the loser to recover, are penal and not remedial, and are to be construed strictly. Bones v. Booth, 2 W. Bl. 1226. Beals v. Thurlow, 63 Me. 9. Commonwealth v. Snelling, 15 Pick. 321. Le Forest v. Tolman, 117 Mass. 109.

The wife of the loser of money at gaming is not an "other person" than her husband, within the Gen. Sts. c. 85, § 1. The statutes giving certain rights to married women are in derogation of the common law, and are to be construed strictly. Edwards v. Stevens, 3 Allen 315. See also Towle v. Towle, 114 Mass. 167; Holmes v. Holmes, 40 Conn. 117.

Before the St. of 1871, c. 312, a married woman could not sue alone for any personal injury, and this statute was intended to meet this difficulty, and not to create a new cause of action. In all cases where the Legislature has intended that a married woman should have a right to sue, in a case similar to the one at bar, the right has been expressly given. See Gen. Sts. c. 86, § 38; Sts. 1869, c. 415, § 40; 1875, c. 99, § 16; 1879, c. 297.

R. Lund, (D. F. Crane with him,) for the plaintiff.

Lord, J. Endicott & Soule, JJ., absent.

OPINION

Lord, J.

Under the instructions given by the presiding judge at the trial, it must be assumed that this action is the action of the plaintiff, and not that of her husband; that it was commenced by her in good faith, and upon her own account, and upon her own responsibility, and is in no sense to be regarded as the suit of her husband. This presents the question distinctly and precisely, whether, under the St. of 1871, c. 312, a married woman may bring an action under a penal statute to recover a penalty.

It is true, as contended by the defendant, that the statute which gives this remedy to a third person is highly penal; and the general proposition of the defendant, that while, so far as the loser of money at gaming is concerned, the statute may be considered remedial, yet as to the common informer or third person, or party seeking to enforce the forfeiture of three times the amount lost, it is to be regarded as a penal statute, is undoubtedly supported by the authorities in this and other jurisdictions; so that the question presented is whether a married woman may bring an action for a penalty recoverable by any person who shall sue therefor.

The action must by statute be an action of tort. Gen. Sts c. 85, § 1. The St. of 1871, c. 312, is in these words: ...