Schubert v. August Schubert Wagon Co.,

• Court: New York Court of Appeals
• Writing for the Court: CARDOZO
• Citation: 164 N.E. 42,249 N.Y. 253
• Decision Date: 20 November 1928
• Parties: SCHUBERT v. AUGUST SCHUBERT WAGON CO.

249 N.Y. 253
164 N.E. 42

SCHUBERT
v.
AUGUST SCHUBERT WAGON CO.

Court of Appeals of New York.

Nov. 20, 1928.

Action by Jessie Schubert against the August Schubert Wagon Company. From a judgment of the Appellate Division (223 App. Div. 502, 228 N. Y. S. 604), reversing a judgment of the Trial Term in favor of defendant (129 Misc. Rep. 578, 222 N. Y. S. 115), and directing a judgment on a verdict in favor of plaintiff, the defendant appeals.

Affirmed.

[249 N.Y. 253]Appeal from Supreme Court, Appellate Division, Fourth department.
Warnick J. Kernan, Edward J. Burns, Jr., and Willis D. Morgan, all of Utica, for appellant.

249 N.Y. 254]James T. Cross, of Rome, for respondent.
CARDOZO, C. J.

Plaintiff, while in the highway, was struck by the defendant's car and injured. The car causing the hurt was driven by plaintiff's husband, who was then in the defendant's service. His negligence is not disputed. The employer would have been liable if [249 N.Y. 255]the servant, the driver of the car, had been a stranger to the plaintiff. The question is whether the rule of liability is different where the servant is the husband.

We have held that a wife may not maintain an action against a husband, nor a husband against a wife, for personal injuries, whether negligent or willful. Schultz v. Schultz, 89 N. Y. 644;Allen v. Allen, 246 N. Y. 571, 159 N. E. 656. Cf. Thompson v. Thompson, 218 U. S. 611, 31 S. Ct. 111, 54 L. Ed. 1180,30 L. R. A. (N. S.) 1153,21 Ann. Cas. 921. There is no doubt that this was the rule at common law. Schultz v. Schultz, decided in 1882, held that the rule had not been changed by the statutes then in force. The disability was reciprocal, affecting the man as well as, the woman, and was based upon the common-law doctrine of the merger of their beings in the unity of marriage. The Legislature, confronted by that decision and by others of like tenor (Abbe v. Abbe, 22 App. Div. 483, 48 N. Y. S. 25;Perlman v. Brooklyn City R. Co., 117 Misc. Rep. 353, 191 N. Y. S. 891;Id., 202 App. Div. 822, 194 N. Y. S. 971), has left the applicable statutes unchanged in point of substance. We held very recently that in the absence of amendment the rule thus interpreted must be deemed to have survived. Allen v. Allen, supra.

The disability of wife or husband to maintain an action against the other for injuries to the person is not a disability to maintain a like action against the other's principal or master. There are, indeed, decisions to the contrary by courts of other states. Maine v. James Maine & Sons Co., 198 Iowa, 1278, 201 N. W. 20, 37 A. L. R. 161;Riser v. Riser, 240 Mich. 402, 215 N. W. 290;Emerson v. Western Seed & Irrigation Co. (Neb.) 216 N. W. 297, 56 A. L. R. 327. We are unable to accept them. True, of course, it is that a master is not liable for the act of his servant, under the rule of respondeat superior, if the act itself was lawful. New Orleans & N. E. R. Co. v. Jopes, 142 U. S. 18, 12 S. Ct. 109, 35 L. Ed. 919;Pangburn v. Buick Motor Co., 211 N. Y. 228, 105 N. E. 423. A judgment to that effect in an action against the servant may be pleaded as a bar in an action against the master. Freeman on Judgments, vol. 1, [249 N.Y. 256]p. 1031, and cases there cited. So, accord and satisfaction, or release, will have the same effect as they have upon joint tort-feasors generally. Horgan v. Boston Elevated R. Co., 208 Mass. 287, 94 N. E. 386. But the master is not exonerated when the servant has had the benefit of a covenant not to sue (Gilbert v. Finch, 173 N. Y. 455, 66 N. E. 133,61 L. R. A. 807, 93 Am. St. Rep. 623;Walsh v. New York Cent. & H. R. R. Co., 204 N. Y. 58, 97 N. E. 408,37 L. R. A. (N. S.) 1137), or has set up a discharge in bankruptcy, or has escaped liability upon grounds not inconsistent with the commission of a wrong...