Smith v. Piermont

31 N.H. 343

• Court: Superior Court of New Hampshire
• Decided: July 15, 1855
• Status: Published

Opinion

Woods, C. J.

The question is whether the nonsuit was properly ordered in this case. It was ordered upon the reading of the declaration and plea. Of course no evidence was offered or opportunity given therefor. It, then, must be assumed that the facts alleged in the declaration might all have been proved, and would have been proved, and were true ; and that the ruling of the court, ordering the non-suit, was made upon that assumption. It is entirely clear that enough is alleged in the declaration to entitle the plaintiff to recover. The defective condition of the road, the duty of the town to keep it in repair, and the injury to the plaintiff’s horse and wagon, resulting from the want of repair alone, are facts alleged, and if alone alleged and proved, would clearly entitle the plaintiff to recover in this action. The objection made and urged against the plaintiff’s right of recovery and in support of the nonsuit is, that damages are claimed also in the action, for an injury to the person of the wife of the plaintiff, resulting from the same cause, viz.: the want of repair of the highway complained of. The position is entirely correct, that the husband cannot maintain an action in his own name alone, for a personal injury to the wife, and her personal sufferings resulting therefrom. In such case, she must be joined in the action. And it is equally true that the wife cannot properly be joined Avith the husband, in an action for an injury to the personal property of the husband. This is familiar law.

The present is a case, in which the plaintiff has declared, alleging, in the same count, that by the fault of the defendants, he has sustained an injury in his personal chattels; and also that his wife has sustained an injury, and that thereby she has undergone personal sufferings, and is likely to suffer further pains.

Now it is clear that the action is well brought for the damage to the horse and wagon. Is the right to recover defeated by the additional allegations of injury and damage to the wife ? Todd & ux. v. Bedford, 11 Mod. 264, was an action for assaulting the Avife and driving a coach over her, and it Avas further alleged that the husband laid out money in her cure. In that case a motion in arrest was denied. It Avas decided that after verdict, where there is a proper cause of action in the wife, though circumstances are added which are actionable by the husband only, the declaration is good by husband and wife, and the additional circumstances are only to be regarded as matter of aggravation.

In Lewis & ux. v. Babcock, 18 Johns. 443, it was decided that a declaration in trespass, by husband and Avife, for a personal injury to the wife, containing also a cause of action for Avhich the husband alone might sue, as the loss of her company and assistance, in consequence of the battery, and is good after verdict, although it would be bad on demurrer. In Russell & ux. v. Come, 1 Salk. 119 & note, the husband and wife brought an action for the battery and false imprisonment of the wife, per quod, the husband’s business remained undone. A motion in arrest of judgment was made after verdict, and Holt, C. j., said, "I will not intend the judge suffered that to be given in evidence,” and the motion was denied. Chitty says “ care must be taken not to include in the declaration by the husband and wife, any statement of a cause of action for which the husband alone ought to sue ; therefore, after stating the injury to the wife, the declaration ought not to proceed to state any loss of assistance, or expenses sustained in curing her.” 1 Chit. Pl. (8th Amer. ed.) 73. Mr. Chitty does state what consequences will flow from such additional statement in the declaration. We have seen, however, what they are from the other authorities noticed.

According to the doctrine of those cases, it is quite clear that, in a case like the present, after verdict, the judgment could not be arrested. If advantage could be taken of it, most probably it must be upon demurrer, (Lewis v. Babcock, before cited.) and not upon motion for nonsuit upon the general issue. It is a case, also, in which upon trial, objection might properly be interposed, against the introduction of evidence in support of the allegation of any facts of personal injury or suffering on the part of the wife, as the foundation of any claim of damages, or for any other purpose in the action.

We think the allegations, in relation to the injuries sustained by the plaintiff’s wife, may also be well regarded as surplusage, not being necessary to the maintenance of the action, enough being alleged, aside from those allegations, to give the plaintiff a right of action, and the material allegations not being so connected with the immaterial ones as to make the former in any way depend upon the latter. 1 Chit. Pl. (8th Am. ed.) 229, 230.

If the objection relied upon, in this case, to sustain the nonsuit, be an objection of which the defendants might have availed themselves in some form, it is quite clear, we think, that the form of objection adopted could not avail. The defect, if any existed, was upon the face of the pleadings, and should probably have been taken advantage of upon demurrer, or by way of objection to any evidence under the immaterial allegations, or by some of the other methods of objecting to bad pleadings.

It was certainly not a case for a nonsuit. Here was a good cause of action set out, and more too. Something was added. And there was no omission to prove sufficient of what was alleged. That is not pretended.

This case does not present the case of a husband suing alone when the wife ought to be joined, for he sues for an injury to his personal chattels. Nor does it furnish the case of persons improperly joined, for here the husband sued alone.

Upon the whole, we are unable to see any ground upon which, the nonsuit can be sustained.

Nonsuit set aside and a neio trial granted.