The City Of Wheeling v. Trowbridge Et Ux.

• Decision Date: 31 July 1872
• Citation: The City Of Wheeling v. Trowbridge Et Ux., 5 W.Va. 353 (W. Va. 1872)
• Parties: The City of Wheeling v. A. S. Trowbridge et ux.
• Court: West Virginia Supreme Court

5 W.Va. 353

The City of Wheeling

v.A. S. Trowbridge et ux.

Supreme Court of Appeals of West Virginia.

July Term, 1872.

1. Where an action is brought by the husband and wife for a wrong to the wife, there can be no recovery for what is special damages to the husband.

2. The wife may join with the husband where she is the meritorious cause of action, and where the right of action would survive to her if the husband died before the amount of damage was received. Otherwise, where the husband alone is entitled to damages., and in case of his death they would go to his personal representative.

3. In this case one count alleged special damages to the husband; another count alleged a case in which the wife was the meritorious cause of action. A demurrer should have been sustained, because the different causes of action were united, and the damages could not. be severed.

4. The wife could not be a witness for the husband as to the special damages but was properly a witness as to the general damages; she being the meritorious cause of action, and in the event of the husband's death the right of action surviving to her.

This was an action of trespass on the case, brought to September rules, 1870, in the circuit court of Ohio county. Verdict and judgment for the plaintiffs for one thousand five hundred dollars, June term, 1871.

The first count in the declaration averred that by reason of defects in the pavement and sidewalk of the defendant, the female plaintiff was injured by a fall, &c, whereof the husband was deprived of the society, assistance, &c, of the wife, and was obliged to expend large sums of money in her recovery, &c, to-wit, the sum of five hundred dollars.

The second count contained the same averments as the first, except it did not allege damages for the loss of society, &c.

The third count alleged injuries simply to the female plaintiff, whereby the plaintiffs were damaged five thousand dollars.

There was a general demurrer to the declaration and to each count thereof, which was overruled.

There was a bill of exceptions taken on the trial, by the defendant, because the court permitted the female plaintiff to testify in the cause.

The defendant brought the case here for review.

C. W. B. Allison for plaintiff in error.

John E. McKennan and N. Richardson for defendants in error.

Moore, J. It seems, from the weight of authority, to be the established principle, where the action is by husband and wife for a wrong to the wife, there can be no recovery for what is special damage to the husband; and as stated in 1 Chitty's Pleading, side page 34." Care should be taken that...