Schubert v. August Schubert Wagon Co.

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

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.

Appeal from Supreme Court, Appellate Division, Fourth department.

Warnick J. Kernan, Edward J. Burns, Jr., and Willis D. Morgan, all of Utica, for appellant.

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 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 unreleased and unrequited. No doubt one can gather pronouncements from treatise or decision which, taken from their setting, give color of support for an exemption even wider. They have no such effect when related to context and occasion. Few formulas are meant to serve as universals. A progeny deformed or vicious may be known as illegitimate. Here as elsewhere we are to be on our guard against the perils that are latent in ‘a jurisprudence of conceptions.’ Hynes v. New York Cent. R. Co., 231 N. Y. 229, 235, 131 N. E. 898, 900 (17 A. L. R. 803).

An employer commits a trespass by the hand of his servant upon the person of another. The act, let it be assumed, is within the scope either of an express mandate or of an implied one. In either event, if the trespass is not justified, he is brought under a distinct and independent liability, a liability all his own. The statement sometimes made that it is derivative and secondary (Pangburn v. Buick Motor Co., supra), means this, and nothing more: That at times the fault of the actor will fix the quality of the act. Illegality established, liability ensues. The defendant, to make out a defense, is thus driven to maintain that the act, however negligent, was none the less lawful because committed by a husband upon the person of his wife. This is to pervert the meaning and effect of the disability that has its origin in marital identity.

A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act, though the law exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity. The trespass may be a crime for which even a husband may be punished, but, whether criminal or not, unlawful it remains. As well might one argue that an employer, commanding a husband to commit a battery on a wife, might justify the command by the victim's disability. The employer must answer for the damage, whether there is trespass by direct command, or trespass incidental to the business committed to the servant's keeping. In each case the maxim governs that he who acts through another acts by himself. In all this there is...