39 S.C. 555 | S.C. | 1893
The opinion of the court was delivered by
who, after a statement of the case, ruled as follows:
1 This was an action at law for damages, and, therefore, the judgment of the trial justice without a jury must stand as a special verdict upon the facts of the case, which this court has no right to review or reverse. See Nichols v. Railroad Co., 23 S. C., 604.
4 Exceptions 3, 4, 5, and 6 make the point that a married woman cannot be made liable for a tort committed in the presence of her husband, without proof showing that she acted voluntarily and wilfully. The doctrine upon the subject of the liability of the husband for the tort of the wife committed in his presence is truly stated in the case of State v. Hauston, 29 S. C., 112, as follows: “In the case of State v. Parkerson, 1 Strob., 170, Judge Withers, in delivering the opinion of the court, said: ‘It is a mistake to affirm that a wife may not be indicted, convicted, and punished in conjunction with her husband. While it is true that if she committed a bare theft, or even a burglary, by the coercion of her husband, she will not suffer punishment; and while it is also laid down that coercion is to be presumed from his presence, still it is quite clear that this is only one of those presumptions or inferences classed as prima facie that may be rebutted by tes
The doctrine has been laid down more fully in volume 9, p. 824, Amer. & Eng. Enc. Law, as follows: “(1) If the tort is committed in the presence of the husband, and nothing more appears, it is his sole tort, as the wife is considered to have acted under his coercion; (2) If the tort is committed in his presence, but she appears to have acted deliberately and freely, it is their joint tort; (3) If the tort is committed in his presence and against his will, it is her tort, and he is liable with her; (4) If the tort is committed out of his presence, but by his direction, she is jointly liable with him; (5) If the tort is committed out of his presence, and without his knowledge or consent, he is liable with her.”
In this case the trial justice found as a fact that Mrs. Wendler “acted with her own freewill and accord,” and not under compulsion of her husband. That places the case in the second category above stated, when the tort is committed in the presence of her husband', but the wife appears to have acted “deliberately and freely.” The land belonged to her; she was active in the business; and we concur with the trial justice and Circuit Judge, that she did not act under the compulsion of her husband, but “deliberately and freely.”
Judgment affirmed.