City of Wheeling v. Trowbridge

5 W. Va. 353 | W. Va. | 1872

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 the declaration does not embrace a cause of action which affords the husband only a right to sue. Therefore where husband and wife declared for a debt due for a cure effected by the wife during their marriage, and the declaration also contained a charge for medicines supplied,” upon general demurrer it was objected that the wife could not join, for that she was not the sole cause of action, because the medicines were the husband’s own property, and the damages could not be severed, and of that opinion was the court.” The wife may join with the husband where she is the meritorious cause of action, and where the right of action ivould survive to her, if the husband died before the amount of damages was received. But where the husband alone is entitled to the damages, and in case of his death they would go to the personal representative, then the husband should sue alone. In this case the husband claims special damages for the loss of the society and comfort, assistance, &e., of his wife, and for money laid out and expended by him in and about the endeavoring to heal and cure her. Under the authority of Den-gate and Wife vs. Zardiner, 4 M. & W., 6, cited in 3 Rob. New Practice, page 192, it would seem the wife could not join the husband in the recovery of such damages. The third count clearly shows a right of action in which both properly joined, she being the meritorious cause of. action, and the damages would survive to her. But these different causes of action being united in this action, I think it improper becausthe da ages could not be severed. I am therefore of opinion, the demurrer should have been sustained. The judgment should therefore be reversed, the demurrer sustained, and the cause remanded to the circuit court that the declaration may be amended and the cause proceeded in.

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

As to the other points in the case, so ably argued by both parties, the authorities are conclusively in favor of the plaintiffs.

But for the reasons stated on demurrer the judgment must be reversed.

The other judges concurred.

JüDGMENT REVERSED.