Tell v. Gibson

McKee, J. This was an action by husband and wife to recover damages for personal injuries to the wife, caused by her falling through an open hatchway into the cellar of a store occupied by the defendant. It is alleged in the complaint that the wife was thereby permanently injured, and, in consequence of the injury, “ was confined to her bed for thirty days, and was compelled to expend two hundred dollars for medical attendance, and for care and nursing, during said time; and is now, in great part, deprived of her own services in and about her work, and [248]permanently disabled to perform the same.” For those elements of damage, and “ the great mental and physical pain she has suffered in consequence of the injuries,” the husband and wife demanded judgment in the sum of $5,000.

There was a demurrer to the complaint upon several grounds, the chief of which was, that several causes of action, viz: a cause of action for the personal injuries to the wife, a cause of action for the loss of the services of the wife resulting from the injuries, and a cause of action for moneys expended for medical attention and nursing, were improperly joined without being separately stated. The demurrer was overruled, and the defendant filed an answer containing specific denials of the allegations of the complaint, and setting up contributory negligence of the wife.

The demurrer ought to have been sustained. It is a well settled rule of law, that if a wife be injured in person or property, she cannot sue for redress without her husband’s concurrence, and in his name as well as her own. That was the rule of the common law, and is the rule of the Code of Civil Procedure. The exceptions to the rule under the code are:

1. When the action concerns her separate property, or her right or claim to the homestead property.

2. When the action is between herself and husband.

3. When she is living separate and apart from her husband, because of desertion by him, or in consequence of an agreement in writing executed by both.

In such cases the wife may sue alone; but for a personal injury to the wife, suit must be brought in the name of the husband and wife. Yet the wrongful act which caused the injury to her may involve two distinct wrongs, for which the law gives two distinct causes of action: one to the wife, to recover damages for the injury to her; another to the husband, to recover damages for the consequential injury to him caused by the loss of the services of his wife, and the expenses incurred by her injuries. For the consequential injuries to himself, the husband may sue alone. For the direct injury to the wife, husband and wife must sue, and the two causes of action cannot be joined in one suit. That is permissible in the English court under the Common Law Procedure Act of 1852 ; and by the provisions