31 W. Va. 374 | W. Va. | 1888
Action at law on an insurance policy, brought in the Circuit Court of Ohio county by Honora Fox and Thomas Fox,
The first error assigned is that the declaration is fatally defective, and that, therefore, the court improperly overruled the demurrer thereto. The declaration is in the form prescribed by our statute (section 61, ch. 125, Code). The record does not state any special grounds of demurrer; but it is claimed, in the argument before the court, that inasmuch as the declaration avers that the fire which caused the loss of the property insured by the defendant occurred on or about the 27th day of March, 1882, while the policy, filed with and made part of the declaration, is dated October 7, 1880, and insures the property for one year only from that date, these facts make it apparent that the policy sued on was not in force at the time the alleged loss occurred; that the declaration thus shows affirmatively that the loss occurred after the insurance had expired; and that, therefore, the declaration is fatally defective because it fails to aver any loss against which the defendant had agreed to insure. I do not think this objection can be maintained, for the reason that the policy not only provides for its continuance in force one year from its date, but that it may be continued in force “for such further time as shall be agreed upon, provided the premium therefor is paid and indorsed on this policy, or a receipt given for the sameand by an indorsement on the policy it does appear that it was continued in force to a time after the loss occurred. But, even if it could be regarded as essential that the declaration should have averred a renewal of the policy, the omission is one that should have been specially called to the attention of the trial court, where the omission could have been at once supplied.
It is further contended that the demurrer should have been sustained because the declaration alleges that the defendant owed the plaintiffs, Honora Fox and Thomas Fox, her husband, while the policy, which is a part of the declaration, shows that the contract of insurance was with the plaintiff, Honora Fox, alone. Without stopping to inquire whether or not this question could or did properly arise on the demurrer, we shall proceed to consider it as one properly presented by the overruling of the defendant’s motion for a new trial. The evidence of the plaintiffs shows that the contract of insurance was with the female plaintiff alone, and that the property insured, and which was destroyed by fire, was her separate estate, and her husband had no inter-erest therein. Thus the question is directly presented whether or not the joinder of the husband with the wife in this action is such a fatal error as warrants this Court in reversing tbe judgment and setting aside the verdict in favor of the plaintiffs.
Our statute provides that “a married woman may sue and be sued without joining her husband, in the following cases: (1) Where the action concerns her separate property; (2) where the action is between herself and her husband; (3) where she is living separate and apart from her husband; and in no case need she prosecute or defend by guardian or next friend.” Section 12, ch. 66, Code 1887. It is not
The contention is that the joinder of the husband with the wife is a fatal error. The claim is that the statute is mandatory, and that by its terms the wife must sue alone where the action, as in this case, concerns her separate property. Many of the States have statutes similar to ours, though all of them differ in some respects more or less material. It is therefore an unsafe rule for us to follow the decisions of other States, even where their statutes are very similar to ours, especially as there is much conflict and want of uniformity in the decisions of those States.
In New York, after repeated adjudications on both sides of the question, the rule seems to be settled that, in actions relating to the separate property of the wife, the husband is an improper party. Palmer v. Davis, 28 N. Y. 242; Draper v. Stouvenel, 35 N. Y. 507. The law seems to be the same in New Hampshire and Illinois. Whidden v. Coleman, 47 N. H. 297; Cooper v. Alger, 51 N. H. 172; Hayner v. Smith, 63 Ill. 430. While in Indiana, Iowa, Wisconsin, Maryland, Minnesota, Ohio and California the rule is held to be the other way ; that is, that the wife has her election to sue alone or unite her husband. Gee v. Lewis, 20 Ind. 149; Kramer v. Conger, 16 Iowa 434; Norval v. Rice, 2 Wis. 22; Barr v. White, 22 Md. 259; Kennedy v. Williams, 11 Minn. 314, (Gil. 219;) Reinheimer v. Carter, 31 Ohio St. 579 ; Corcoran v. Doll, 32 Cal. 82. In these latter States it is held that the language, “ may sue and be sued alone,” is permissive. and authorizes the wife, in actions brought by her “ concerning her separate property,” to unite her husband or not, at her election.
In Pom. Hem. § 238, it is said that “ whenever the general rule as above stated prevails, wherever it is provided that the wife may sue alone in actions concerning her separate property, and in certain others as designated, it is generally, if not universally, held that the language of*the statute, ‘ may sue,’ is permissive, and not compulsory. She has her option to sue in her own name alone, or to unite her husband as a co-plaintiff. Either mode of bringing the action is legal and
At common law a suit by husband and wife was a suit by the husband alone; and this was so because the wife was not considered sui juris, and could never sue in her own name, but only by her next friend. This rule has been abrogated by our statute, and therefore it is not true, in this State, that a suit by husband and wife is the suit of her husband alone; it is the joint suit of both. The power thus conferred upon the wife by our statute, it is believed, will explain, to some extent, the reason why she may, in this and other States having like statutes, join her husband; while in other States, which have no such provision, she can not sue by uniting her husband in the action. In these latter States she can only sue by her next friend, and consequently a suit by herself and husband is not her suit at all. Claflin v. Van Wagoner, 32 Mo. 253. If there is any conflict in the interests of the husband and wife, then it becomes necessary for her to sue alone in order to protect her interests; and in other cases it may be advisable for her to sue alone, as she has the undoubted power to do in all. the three classes of cases mentioned in the statute. But whether she will do so or not is a matter for her own election, and one of which the defendant can not complain, since a suit by her and her husband would be as much a bar or estoppel against another suit for the same cause of action as would a suit by herself alone. It was therefore not error of which the defendant (the plaintiff in error) can complain that the husband was joined with the wife in this action. In Ackley v. Tarbox, 31 N. Y. 564, it was held that, in an action brought in the name of husband and wife for damages to the separate property of the wife, the name of the husband could be stricken from the proceedings either before or after judgment, and then the judgment can be entered in favor of the wife alone.
The only other ground of error alleged is that the defendant’s motion for a new trial was improperly overruled, because the verdict was not sustained by the evidence. While there is some evidence tending to show that the female plaintiff caused the insured property to be burned, and that its value was less than the amount of the verdict, still, as the testimony is not clear and positive, and the jury having-found in favor of the plaintiffs, and their finding was approved by the trial-court, we can not, according to the well-settled rule in such cases, reverse said finding and judgment. Black v. Thomas, 21 W. Va. 709.
For the reasons aforesaid the judgment of the Circuit Court must be affirmed.
AFFIRMED.