Snow v. Carpenter

49 Vt. 426 | Vt. | 1877

The opinion of the court was delivered by

Royce, J.

This suit was entered at the April Term of Wind-ham County Court, 1875,' and was continued to the September Term, 1876, at which term the defendants’ motion to dismiss was filed. The motion was predicated upon the allegation in the declaration, that at the time of the commencement of the plaintiff’s action, she was the wife of one Ira A. Snow, who was not joined with her in bringing the suit. Under the common law, the husband and wife must join in suits to recover for injuries done to the wife or her property during coverture. And if the wife sues alone, the non-joinder of the husband can only be taken advantage of by plea in abatement. Milner v. Milner, 3 T. R. 627 ; Morgan v. Painter, 6 T. R. 365 ; Bates v. Stevens, 4 Vt. 545.

But conceding that the non-joinder of the husband might, in this case, have been taken advantage of by a motion to dismiss, such a motion must be regarded as in the nature of a plea in abatement, and if not filed within the time limited for the filing of such pleas, the right to take advantage of the non-joinder is considered as waived. The motion was not seasonably filed, and for that reason the court was justified in overruling it, without deciding the question as to the right of the wife, under the act of 1869, to bring suit in her name alone. Pollard v. Wilder, 17 Vt. 48; Montpelier v. Andrews, 16 Vt. 604; Barnet v. Emory, 43 Vt. 178.

The right of the husband to testify as a witness for his wife, must depend upon the construction to be given to No. 27 of the Acts passed in 1874. That statute is entitled, an act in amendment of the act of 1869, under which this suit is brought, and provides that no person shall be disqualified as a witness by reason of the márriage relation, in any proceedings under this act. The act of 1869 remained in force after the passage of the statute in 1874, except as it was changed or modified by that statute. The statute of 1874 did not affect any vested right that had accrued under the act of 1869, but simply changed the rules of evidence by which the right might be determined, by removing the common-law disqualification of witnesses resulting from the marriage relation. This was clearly within the legislative power of the state ; and the husband was properly permitted to testify.

By the defendants’ first and second requests, the court was requested to charge that, to entitle the plaintiff to recover, she must show that the injury to her was 'occasioned by the wilful act of the husband, and if the injury was occasioned by accident incident to and the result of careless driving of her husband, and without any wilful intent on his part to injure her, she could not recover. The court did not comply with those requests any farther than to charge dhat if the jury believed what the plaintiff had testified to as to the manner'of her husband’s driving, what he said and did, and his management of the horse — drunk as he was — the plaintiff was thrown from the wagon down the bank and injured, then it was a wilful act on his part,, and the plaintiff was entitled to recover, — thus making the plaintiff’s right of recovery dependent upon the belief that the jury might entertain of the truthfulness of her testimony.

. Adopting the construction of the term wilful act that was given in Smith v. Wilcox, 47 Vt. 537, by the learned judge who presided in the court below, it seems to us, from a careful perusal of the plaintiff’s evidence as detailed in the exceptions, that, admitting the entire truthfulness of that evidence, it does not necessarily follow that the injury she received resulted from the wilful act of her husband. The question of whether the act of her husband was wilful or not, was a question of fact; and if it had been submitted to the jury upon her evidence, with proper instructions as to what in law would constitute a wilful act, they might have found that some of the essential elements to make the act wilful, as defined in the case before referred to, were wanting. We think it was the right of the defendants to have the question so submitted, and that the second request should have been complied with.

The defendants further requested the court to charge, “ that the plaintiff was not entitled to recover anything by reason of any striking, shaking or beating she received from her husband after the accident occurred ánd as to this request, the court did not charge. No question appears to have been made upon the admissibility of the evidence tending to show that such injuries were received ; and it may have been offered for the purpose of showing that the husband was intoxicated at the time. By reference to the declaration, it will be seen that no injuries of that character are alleged. But on the contrary the injuries which it is alleged the plaintiff sustained, are stated as the direct result of the overturning of the wagon. Hence, upon familiar principles, no recovery could be had for such injuries, for the reason that they were not embraced in the declaration. But in the absence of any instructions by the court upon the subject, the jury may have considered those injuries in their estimate of damages. The request should have been complied with.

There was error in the charge upon the subject of damages. It seems to be well settled in this state, that a party is not entitled as a matter of legal right, to exemplary damages in any case. Earle and Wife v. Tupper, 45 Vt. 275 ; Hoadley v. Watson, 45 Vt. 289 ; Jerome v. Smith, 48 Vt. 280 ; Boardman v. Goldsmith, 48 Vt. 403. The error consisted in the instruction to the jury, that the plaintiff was entitled to exemplary damages, and the error was not cured by the explanation which was made by the court. From all that appears to have been said by the court upon the subject, it is probable that the jury understood that the plaintiff was entitled to exemplary damages as a legal right, and the explanation, as defining the purposes for which they were given, as-that the giving or refusing them was a matter entirely within their discretion.

Judgment reversed, and cause remanded.