21 Conn. 557 | Conn. | 1852
The defendants in this case, after verdict for the plaintiffs, move in arrest of judgment, on the ground of
These several claims will be considered in their order.
First, does the declaration allege, that the defendants are common carriers, or carriers of passengers, or, that they have power, by their charter, to become carriers? We think it does. After stating that the defendants were the owners of a certain rail-road, running through the towns of Water-bury and Plymouth, and of certain cars for the conveyance of passengers upon said road, it then goes on to say, “And the defendants, on the day aforesaid, were the owners and proprietors of, and were running and propelling, a certain train of passenger cars upon said road, for the carriage and conveyance of passengers, for a certain reasonable reward paid to the defendants.” Now, a common carrier is one whose usual business it is, to carry; and the substance of these allegations is, that the defendants owned all the property and implements, usually employed by carriers of a certain description—railroad companies—and that they were, at the time, engaged in the use of this property, for the conveyance of passengers. We think this is enough, without a statement of the length of time the defendants had been engaged in the business, or any direct and positive allegation, that they were common carriers. In this respect, the counts conform to the precedents found in Chitty, or, if they differ from them, are rather more precise than those precedents.
It was not necessary to allege, that the defendants had power, by their charter, to become common carriers. They are alleged to be a rail-road corporation, owning cars, and
2. It is claimed, that the declaration asks for damages on account of the wife’s personal injury, and also for the expenses of her cure.
Each of the counts, after stating the wife’s personal injury, and the extent of it, then goes on to say, that, by means of the injury, she became sick, was prevented from attending to her necessary affairs, “and also thereby, they, the said plaintiffs, were forced and obliged to, and did, necessarily pay, lay out, and expend, a large sum of money, to wit, the sum of two hundred dollars, in and about endeavouring to be cured of the bruises, &c.”
It is clear, that the plaintiffs could not recover for the wife’s personal injury, and also for the expenses of her cure, in the same action. On the former ground of damages, the husband would have no interest, while the latter, would accrue to him alone; and so the two claims would be incompatible with each other. But we do not think this declaration open to that objection. Indeed, it may fairly be doubted, whether it was framed with that object in view. The ground of the action was the wife’s personal injury alone: otherwise, she could not have been made a party at all; and, we think, the statement in regard to the expenses of her cure, may well enough be considered as descriptive of the extent of her injury, rather than as a distinct and substantive ground of damages—as saying, in substance, that she was so hurt, that it had already cost two hundred dollars to cure her. In this aspect, the allegation, though unnecessary, is still very proper.
But suppose the pleader intended it, as a distinct ground of recovery, and that it is so expressed as to bear that construction only, still we think it clear, that it does not vitiate the declaration. In every instance, this claim is inserted as
3. It is said, there is a misjoinder of counts in the declaration; the promise in the two first counts being laid as made to the wife, and in the third, as made to the plaintiffs. It is true, the third count uses the plural word “plaintiff's,” when stating the person to whom the promise was made; but it is preceded and followed by language which shows, that the wife only was meant. Immediately preceding the allegation of the promise, it is stated, that “in consideration that the said Betsey Fuller, at the special instance and request of the defendants, had then and there engaged a seat and place, by a certain other car, to be carried and conveyed thereby to Plymouth aforesaid, for certain other reasonable hire and reward to the said defendants in that behalf paid and received, they, the said defendants, then and there undertook,” &c., that due and proper care should be observed in and about the carrying, conveying, and delivering her the said Betsey, as such passenger as aforesaid;" and then it goes on to say, that the said Betsey, confiding in said promise, became such passenger. It was, then, the wife that engaged the seat, and paid for her passage; and it was for her benefit that the promise was made. We think, therefore, the fair reading of the count is, that the promise was made to her, although its language, if not restrained by the whole frame of the count, would include both plaintiffs.
4. It is claimed, that a married woman cannot sue in assumpsit, on a contract made subsequent to the coverture; on the ground, that all choses in action accruing to her, vest, absolutely, in the husband; and, under some of our decisions, this is the most material question in the case. It is said, the husband paid for her passage, and therefore, the prom
The question, then, is narrowed down to this—whether our decisions have so far destroyed the identity of the wife, as that a binding promise cannot be made to her for any purpose—not even for her personal security. Now, whatever may be said of the result to which the reasoning of some of our judges leads, we have no idea, that they intended to sanction any such doctrine. The truth seems to be, that our late cases on this subject, rest on the authority of Griswold v. Penniman, 2 Conn. R. 564; and that case rests upon the notion, that, because a husband may sue alone, on most choses in action, accruing to the wife during coverture, they vest absolutely in him. This, says Judge Swift, “clearly proves, that they vest in him absolutely.” Previous to the case of Griswold v. Penniman, our court of errors had decided, that an agreement between husband and wife was absolutely void, unless it was made through the intervention of a trustee. Hutton v. Dibble, 1 Day, 221. Nichols v. Palmer, 5 Day, 47.
This doctrine, carried out, would, perhaps, sustain the case of Griswold v. Penniman. The common law doctrine, that a husband may sue alone, or join his wife, on choses in action, accruing to her, during coverture, is founded upon the principle, that he has his election not to reduce such choses in action to possession; and the courts, at that day, might have considered such an election, to be a void agreement, under the case of Dibble v. Hutton. However this may be, it is clear, that Judge Swift’s principle does not apply to a case like this. The converse of the ground of that decision is true here. For the personal injury of the wife, the husband never could sue alone. He has no direct interest in that—none whatever, unless in consequence of it, he loses her society and service. For that he might sue; but not for the pain she suffers. If, then, it is true, that his right to sue alone, proves, that certain choses in action vest
_The point stated in the motion, that the first count was laid in assumpsit, and the other counts in tort, has not been insisted upon in argument. We presume it was intentionally abandoned; as the counts all seem to have been taken from established precedents in Chitty, of forms given under the head of assumpsit.
Under the motion for a new trial, it is claimed, that the judge erred, in admitting evidence to prove, that the wife gave money to a witness to buy a ticket for her passage in the cars; that such a ticket was procured, which she took, and also took her seat in the cars, to be conveyed to Plymouth. It is said, this evidence went to prove, that the contract was made with the husband; on the ground, that the money she paid for the ticket, must be presumed to have been his. This might be a plausible claim, if it was not possible for a married woman to have separate property; but as she may have such property, it is obvious, the money might have belonged to either of them, and there might have been other evidence, showing to which it did in fact belong. The objection is, that it did not conduce to prove the contract. We think it did; whether it was sufficient for the purpose, we are not called upon to decide.
Again it is said, that no express contract was made with any one; and that the law will imply a contract only with the husband, because he paid for the ticket. We have already seen, that it does not appear who paid for the ticket, unless the fact, that the money came from her hand, is presumptive evidence, that it belonged to her. We do not think there is any presumption that it was his alone. Besides, it does not appear, whether the promise was expressed or implied. The motion does not profess to report the whole evidence in the case; and so far from presuming the contract was an implied one, we should be bound, rather, to presume that it was express, if it were necessary to do so, in order to sustain the verdict. These reasons are sufficient to dispose of this claim; but it ought not to be understood, that we intend to sanction the notion, that the law will imply a con
The injury for which the action was brought, occurred at the station, or usual stopping place, at Plymouth; and the plaintiffs claimed, it was in consequence of the cars not stopping the usual time, or long enough to give the passengers for that place a reasonable opportunity to leave. Under this claim, the plaintiffs gave evidence of the usual and customary period of the cars stopping at that place; and it was claimed, that such evidence was irrelevant, and ought not to have been received. We think it was proper, for the purpose of showing what the defendants had considered a reasonable time, to be allowed the passengers to leave, at that station; and, if the time allowed for that purpose, on this occasion, was shorter than the usual and customary time, it would tend somewhat to show, that a reasonable, time was not allowed. The evidence probably was not very important; but we cannot say, that it was improper.
The remaining question arises upon the charge of the court. It is said, that it requires too high a degree of care in the defendants. But the rule laid down by the judge, was the one adopted by this court, in Hall v. The Connecticut River Steamboat Company, 13 Conn. R. 319; and has been acted upon ever since. It is too well settled to require reexamination.
Upon the whole case, then, the motion in arrest is advised to be overruled, and no new trial is advised.
Motion in arrest overruled;
New trial denied.