Sargeant v. Fedor

• Decision Date: 26 August 1925
• Docket Number: No. 406.,406.
• Citation: 130 A. 207
• Parties: SARGEANT v. FEDOR et al.
• Court: New Jersey Supreme Court

130 A. 207

SARGEANT

v. FEDOR et al.

No. 406.

Supreme Court of New Jersey.

Aug. 26, 1925.

Action by John Sargeant against Mary Fedor and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued March term, 1925, before TRENCHARD, MINTURN, and LLOYD, JJ.

Weinberger & Weinberger, of Passaic, for appellants.

Feder & Rinzler, of Passaic, for appellee.

PER CURIAM. This action was tried by the court, without a jury, resulting in a judgment for the plaintiff against both defendants for $100. Then action was brought against the defendants, husband and wife, for alleged slander by the defendant wife as follows: "He [the plaintiff] stole a piano; he is a thief." The contention is that error was committed in the refusal to direct a verdict in favor of the defendant husband, inasmuch as the court found that the slander was the wife's voluntary tort, not uttered in the husband's presence nor at his command. At common law the husband was jointly liable for the voluntary torts of his wife, and this rule has not been abrogated in this state by express statute.

By the weight of authority the general property acts relating to married women do not change, by implication, the husband's common-law liability for his wife's torts (13 R. C. L. p. 1233, § 268; 30 C. J. p. 787, § 417; 27 A. L. R. 1218, note; Ann. Cas. 1915D, 1206, note), nor the common-law rule that one spouse may not sue the other in tort (Roberts v. Roberts, 185 N. C. 566, 118 S. E. 9, 29 A. L. R. 1482). But, since the passage of the married woman's acts, a husband is not liable for the torts of his wife, growing out of the conduct by her of her own business or arising from the management by her of her separate property. Harrington v. Jagmetty, 83 N. J. Law, 548, 83 A. 880.

This tort in question, however, is not included in the statutory exceptions in this state, and the husband's liability therefore persists, viz. that punitive damages may be assessed against the husband, though he in no way participated in the wife's tort. 13 R. C. L. 1237, § 273. Some states take a contrary view. Price v. Clapp, 119 Tenn. 425, 105 S. W. 864, 123 Am. St. Rep. 730; Waskey v. Chambers, 224 U. S. 564, 32 S. Ct. 597, 56 L. Ed. 885, Ann. Cas. 1913D, at page 998. But since the common-law rule of liability is adhered to in this state, as against the husband, the consequent rule of common-law damage is equally applicable.

The judgment will be affirmed.