Church v. Town of Westminster

45 Vt. 380 | Vt. | 1873

The opinion of the court was delivered by

Ross, J.

I. The written notice signed by the plaintiff wife, and delivered the selectman of the town, is sufficient. It contains all that is required by the statute, and was seasonably delivered. The defendant makes no question as to its sufficiency, except that it should have been signed by both plaintiffs. The statute requires the notice to be given “ by the person injured or claiming damage.” This language' indicates that when the injury for which damages are claimed is to a person, that person must give the notice, and when the injury is to the property, the owner of the property damaged'must give the notice. Hence the language is in the alternative. The wife alone is the person injured. We also think, though by the common law the husband must be joined with her as plaintiff in the suit, she alone is the person claiming damage; and the notice would be sufficient if the language of the statute had been, “ by the person injured and claiming damage.” She is the meritorious cause of action. If he had died before, or during the pendency of, the suit, the action would have survived to her. The damages when recovered, until reduced to possession by the husband, belong to the wife. If she had died before, or during, the pendency of the suit, the action would not have survived to him. Russell et ux. v. Corne, 1 Salk. 119; Higgins v. Butcher, Yelv. 89. The defendant is entitled to no advantage by its exception.

II. We think, too, that the motion in arrest is not well founded. The defendant claims that the declaration fails to disclose any cause of action in these plaintiffs jointly, inasmuch as it does not allege that Lucy M. Church is the wife of Wilder T. Church,’ and claims that the court cannot look to any part of the writ outside the declaration proper, to help out this alleged deficiency. Whether it was true, as claimed by the defendant, that under the common law proceedings, where the “ original writ,” “ process,” and “ declaration,” were each a separate and distinct instrument, complete in and of itself, no reference could be had by the court to the “ original writ,” or “ process,” to help out any lack of averment or substance in the declaration, we have not taken time to examine or determine. By Gen. Stat. ch. 33, § 9, the three instruments which the plaintiff at common law would have been compelled to use, to bring the defendant into court and state his cause of action, are blended in one instrument, and the declaration is thereby made a part of the writ. The whole must be treated and construed as one instrument. When, therefore, the defendant is summoned to answer to Wilder T. Church and Lucy M. Church, wife of the said Wilder T., and the declaration states that “ the said plaintiffs were passing along, upon, and over said bridge,” &c., “and the said Lucy M. Church was thereby greatly injured,” &c., the defendant, by the words “ said Lucy M. Church,” is by the pleader referred to the previous "description which has been given of Lucy M. Church, to wit, “ wife of said Wilder T.” ; and the words, “ said Lucy M. Church,” by the reference to what had before been said of her, was equivalent to saying, “ and Lucy M. Church, who is, at the date of this writ, the wife of Wilder T. Church, was thereby greatly injured.”

With such an averment in the declaration, it discloses a cause of action in Lucy M. Church, for-the recovery of which, by reason of the marital relation existing between them, Wilder T. and Lucy M. Church must join as plaintiffs.

Judgment affirmed.