Perry v. Wheelock

49 Vt. 63 | Vt. | 1876

The opinion of the court was delivered by

Ross, J.

The damages recovered in the suit, Perry and Wife v. Irasburgh, arose from a personal injury to the plaintiff. She liad the right to control the suit, and the right to the damages when recovered. The husband is a party to such actions in favor of the wife, because the policy of the law requires it, and' not because he necessarily has any pecuniary interest in the damages recovered. This is fully established by the unreported case of Chase & Wife v. Golpin & Wife, heard and decided at the General Term, 1871. That was an action to recover damages for an injury occasioned by a slander of the plaintiff wife. Her husband did not at the time live with her. The defendants obtained a discharge of the suit from him, and pleaded it in bar of the action. This court held that the discharge was no bar to the prosecution of the action by the wife, as she was the meritorious cause of the action, and the damages if recovered belonged to her. The damages recovered in the suit of Perry & Wife v. Irasburgh, being the property of the plaintiff, the only question remaining on the facts found by the County Court, is, whether the husband before his decease reduced them to his possession. The right to reduce the wife’s ehoses in action to possession is personal to the husband. No one can exercise this right for him. He can act as the agent of his wife in collecting her ehoses in action, and in reinvesting in her name the money derived therefrom. The mere fact that her money is or has been in his hands, does not operate to reduce it to his possession, or to make it his money. Unless the husband does some positive act in regard to a judgment recovered in their joint names, and of which she is the meiitorious cause of action, or in regard to the money received on such judgment, that clearly evinces a pui-pose on his part to deprive the wife of the judgment or the avails thereof, and to make them his own, the law presumes the judgment and the avails of it to remain the property of the wife. Heirs of Holmes v. Admr. of Holmes, 28 Vt. 765; Caldwell, Admr, v. Renfrew, 33 Vt. 213 ; Barron v. Barron, 24 Vt. 375 ; Probate Court v. Niles, 32 Vt. 775 ; Roberts, Admr. v. Lund, 45 Vt. 82 ; White & Wife v. Wait, 4:7 Vt. 502. The facts found by the County Court, not only fail to show any act of the deceased husband converting the damages recovered in the suit against Irasburgh to his own use, but show a settled purpose on his part not to do so, and that whatever he did in regard to the judgment or the town order given to Thompson in settlement of the suit, he did as the agent of the plaintiff. The indorsement by Thompson of the order to him, could not avail to make it his property, any more than the payment of the money to him to satisfy said judgment, would have made the money his property. If in such case he should receive and treat the money as his own, it would perfect a conversion of it to his use ; but if he should on the receipt of it hand it to his wife, as he did the order, saying, “ Here, this is yours,” it would still remain the property of the wife. As between the deceased husband and the plaintiff, the town order was her property. So it is her property as between her and his administrator, the defendant.

Judgment affirmed.