Lead Opinion
Respondents, husband and wife, in their complaint charged, in one count, that appellant maliciously committed battery upon the wife by striking her with his fist, and causing her to fall against the corner of a table, whereby she was permanently injured, and that the husband became obligated for medical attendance and hospital fees. The relief demanded was $10,000 actual damages, $3,000 exemplary damages, and $600 for the expenses mentioned. From a judgment for respondents for $5,000 actual damages and $600 because of said expenses, and from an order denying a new trial, this appeal is taken.
Appellant demurred to the complaint for the reason that it improperly united a cause of action, in favor of the husband and wife, for injuries to the wife, with a cause of action, in favor of the husband only, for expenses. The demurrer was overruled, and motions to require respondents to elect between the causes of action, and to strike, were denied.
There is some conflict in the authorities upon this point arising, largely, from broadly divergent statutory provisions in the several states governing the property rights of husband and wife, and the powers of married women as parties litigant. Approaching this question it must be borne in mind this is a community property state and has the following statutory provisions:
Sec. 2676. “All property of the wife owned by her before marriage, and that acquired afterwards by gift, bequest, or descent, or that which she shall acquire with the proceeds of her separate property, shall remain her sole and separate property, to the same extent and with the same effect, as the property of a husband similarly acquired. ’ ’
Sec. 2679. “All property owned by the husband before marriage, and that acquired by gift, bequest, devise or descent is his separate property.”
The right to sue in this case was a chose in action and, by the statutory provisions above quoted, is made community property. Rev. Codes, see. 2686, amended by Sess. Laws, 1913, chap. 105, p. 425, and by Sess. Laws, 1915, chap. 75, p. 187, provides that the husband has the management and control of the community property, except the earnings of the wife for her personal services and the rents and profits of her separate estate. He is, therefore, the only necessary party plaintiff in a ease of this kind and may, in his own name, without joining his wife, sue to recover damages for her personal injuries and for expenses incurred for medical attendance and hospital fees by reason thereof. (Holton v. Sand Point Lumber Co.,
In Giffen v. City of Lewiston,
In Lindsay v. Oregon etc. Ry. Co.,
In Sheldon and Wife v. Steamship Uncle Sam,
In McKune v. Santa Clara Valley Mill & Lumber Co.,
No sound reason can be found for any such exception. In this case the $5,000 recovered for injuries to the wife is an
The complaint commingled two causes of action, not inconsistent, in one count. The proper procedure in such event is by motion to require plaintiff to separately state his causes (Darknell v. Coeur d’Alene etc. Transp. Co.,
The evidence submitted to the jury being sufficient, if uneontradicted, to prove the allegations of the complaint and to support the verdict, the latter will not be disturbed because of conflict. (Raft River Land & Livestock Co. v. Laird,
It is alleged in the complaint that respondents are husband and wife, and both testified to their marriage in Portland, Oregon; to the birth of their two children, and that they had lived together in Oregon and Idaho since their wedding. Appellant, as part of his defense, called as a witness one of the official custodians of the marriage records, of Multnomah County, in which Portland is situated, who testified that in an inspection of such records he found no mention of a marriage between Louis Labonte and Josephine M. Labonte, during the year given by them as that of their marriage. Thereafter, over the objection of appellant, Mrs. Labonte and another witness testified that respondents were married under the name of Clement, that Labonte was one of the Christian names of the husband; that while in Oregon they had been known by both the names, Labonte and Clement, but in Boise had at all times used the name Labonte. The presumption of law is in favor of the validity of a marriage (Huff w. Huff,
Appellant’s contention that he was taken by surprise by such testimony is met by the affidavit of one Grimand to the effect that long previous to the trial he informed Dirks, a co-defendant of appellant, who was represented by the same counsel and who joined in the answer, that respondents were known in Portland and in Joseph, Oregon, by both the name Clement and Labonte. This affidavit was not denied, and upon the hearing of the motion for a new trial the judge apparently concluded, as, in his discretion, he had a right to do, that the contention of surprise was not established.
Testimony was admitted touching the physical ability of Mrs. Labonte to perform labor before and after her injury. Though she claimed no damage for loss of employment, and her husband none for loss of her services, such evidence was competent as tending to show the extent of her injury and suffering. (Graham v. Coeur d’Alene etc. Transp. Co., Ltd.,
Counsel for respondents, upon argument to the jury, called attention to the wealth of appellant and contrasted it with the poverty of respondents. To these remarks appellant’s attorney made objection, immediately after their utterance, on the ground that the evidence did not disclose the financial situation of either of the parties. The objection was sustained. The statements are here assigned as error and as constituting prejudicial misconduct of counsel. The record presents no exception upon which appellant may predicate error in this connection. No motion to strike the alleged im
Appellant complains of an instruction to the effect that if the jury found that he acted maliciously and violently, exemplary damages might be allowed. The verdict contained an aAvard of $5 exemplary damages which, whether .correctly or not, was later set aside by the trial' judge. It is thus apparent that the giving of the instruction worked no harm to appellant.
The instructions of the court, taken as a whole, presented the laAV of the case without prejudice to appellant, and substantially embodied the requests of counsel for special instructions. They afford no reason for disturbing the verdict. (Saccamonno v. Great Northern Ry. Co.,
Mrs. Labonte, at the time of the trial, was twenty-three years old, the mother of two small children, and was in good health previous to the injury, which occurred while she was pregnant. The evidence shows that her injuries are “permanent and progressive.” An award of $5,000 damages is not excessive.
In support of the motion for a new trial upon the ground of newly discovered evidence, appellant filed affidavits to the effect that respondent Louis Labonte had made certain statements and suggestions derogatory, not only to the character of his wife, but, by inference, to his own. This evidence of specific instances of misconduct is evidently intended to discredit him as a witness. That form of impeachment is prohibited by Rev. Codes, sec. 6082. The evidence is inadmissible and furnishes no reason for granting a new trial.
Dissenting Opinion
Dissenting. — This action was brought by respondents primarily to recover damages for personal injuries sustained by the wife of the respondent, Louis Labonte, and in the same count to recover for moneys expended for medical attendance, nursing and hospital fees.
There is a misjoinder of causes of action and a misjoinder of parties plaintiff under the former holdings of this court (Giffen v. City of Lewiston,
An action to recover damages for personal injuries sustained by the wife must be prosecuted, under the laws of this state, by the husband and wife. (Giffen v. City of Lewiston, supra; Lindsay v. Oregon Short Line R. Co., supra.) In the case of Giffen v. City of Lewiston, which was an action brought by John Giffen and his wife to recover damages for personal injury, this court, at p. 245 of 6 Ida., says: “In the case at bar, both husband and wife are necessary parties. The judgment should run to both. The damages, after recovery thereof, become the common property of both. But should the marital relation terminate, either by death or otherwise, the wife would be entitled to recover for such injuries, and any damages so recovered by her after the termination of the marital relation would belong to her exclusively. ’ ’ And again at p. 250, the court says: “The verdict of the jury was in favor of the plaintiff, Mary Giffen, alone. This was erroneous. The court should have instructed the jury to have amended their verdict so as to find in favor of the plaintiffs, and both of them; and the judgment, whether the verdict was amended or not, should have, been that the plaintiffs, John Giffen and Mary Giffen, recover, etc.” Also in the ease
Under statutes identical with ours, the supreme court of California, in the - case of Sheldon and Wife v. Steamship Uncle Sam,
It was urged in that case that the error in overruling the demurrer was error without injury, because at the trial plaintiffs offered no evidence of expenses incurred for medical attendance and nursing. An examination of the case discloses that it was understood that all the- allegations in the complaint with reference to expense incurred for medical attendance and nursing, were stricken out, but upon the trial certain questions were asked the plaintiff, in answer to which she testified as to her inability to take care of herself and do her own work, which questions were predicated, in part at least, upon the loss of services of the wife, and evidence was submitted to the jury as to the elements of damages for injuries consequential upon the injury for which the husband alone could maintain an action. For the foregoing reasons the appellate court reversed the cause.
In the instant case evidence was not only received to support the allegations of the complaint for damages for personal injuries to the wife, but also to support the allegation in the complaint for the recovery of moneys expended for medical care, nursing, etc. This was clearly error. The supreme court of California, in holding that an action for personal injuries to the wife must be brought in the name of the husband and the wife, had clearly in mind the statutory provisions of that state relating to community property, and makes special reference thereto. In McFadden v. Santa Ana etc. Ry. Co., 87 Cal. 464,
These authorities are clear to the effect that there is one cause of action in favor of the husband and wife, jointly, for injuries to the wife, in which both must join, and another cause of action in favor of the husband alone for expenses to which he has been put in connection with the treatment of his wife, in which the wife would not be a proper party. Evidence of expenses incurred for medical service in joint suit by husband and wife is inadmissible. (Louth v. Thompson, 1 Penne. (Del.) 149,
As will be observed, the rule of law to which attention has been called was declared by the supreme court of California long prior to the adoption by this state of identical statutes. These California decisions were followed by this court in the eases cited above. For twenty years the rule has been regarded as settled that a husband and wife must sue jointly for personal injuries to the latter, and that the husband may
There is one other assignment of error to which reference will be made, i. e., the insufficiency of the evidence to support the verdict. No useful purpose would be served in setting out in detail the particulars wherein the evidence fails to justify the verdict, but my examination of the evidence and the surrounding circumstances leads me to the conclusion that there is a total lack of substantial evidence to warrant the jury in finding that appellant struck Mrs. Labonte and that by reason thereof she sustained injuries.
In my judgment the verdict should be set aside and a new trial granted.