land which is her separate property. She may also sue him to recover her personal property; or for money loaned to him; or to recover the value of services rendered in his business under an express contract, or under such circumstances that a promise to pay therefor would be implied.2 When the husband and wife are owners in common of land, she may maintain a suit against him for a partition. The foregoing cases all involve and are based upon rights of action growing out of her ownership of property, or out of contract in reference to such property, or to her services. No rights of action arise from personal torts committed by the husband, and she is not permitted to maintain actions against him to recover damages for such torts, as an assault and battery, or a slander. A husband cannot recover in an action against his wife for his services rendered to her in the oversight and management of her separate property, there having been no express agreement for the payment of a compensation, and the circumstances being such that no promise could be implied." § 241. In those States whose codes conform to the general type stated and described in a preceding paragraph, the rules as to parties plaintiff in actions for torts to the wife's person or character remain unaltered. At the common law the husband and wife were required to join as plaintiffs in all actions for damages from the wife's personal suffering, either bodily or mental, while he sued alone in all actions for damages suffered by himself exclusively, from the loss of her society, and from expenses and the like occasioned by her injuries. Except in New York, Iowa, 1 Minier v. Minier, 4 Lans. 421. The court draw a distinction between a suit like this affecting her separate property and one brought to recover damages for a tort, such as slander, or assault and battery. See, however, per contra, Gould v. Gould, 29 How. Pr. 441. This decision is in plain opposition to the spirit and letter of the remedial statutes. 2 Adams v. Curtis, 4 Lans. 164. The action was against a firm of which the husband was a member. She may be his creditor. Re Alexander, 37 Iowa, 454. 3 Moore v. Moore, 47 N. Y. 467. The husband and wife may sue jointly for the conversion of chattels which they own jointly. Chambovet v. Cagney, 35 N. Y. Superior Ct. 474. 4 Longendyke v. Longendyke, 44 Barb. 366. 5 Freetley v. Freetley, 42 Barb. 641. 6 Perkins v. Perkins, 62 Barb. 531. No express contract was pretended; and the plaintiff relied upon an implied promise. All that the court decided was, as stated in the text, that no promise could be implied, and, therefore, no cause of action was made out. P. Potter J. went, however, much further, and denied that either husband or wife could ever maintain an action against the other upon a contruct, express or implied. These conclusions of the learned judge are directly opposed to the cases cited above, and to the express language of the stat ute. and the few other States which have made the wife in all respects like the single woman in regard to the capacity of instituting and prosecuting judicial controversies, these ancient doctrines of the common law have been preserved. The wife should certainly not be joined as a plaintiff with her husband in any action for tort to his property, or for fraud in relation thereto, unless she has some interest in or ownership of the subject-matter which has also been affected by the wrong. Thus, where a husband is induced by the false and fraudulent representations of the grantor to purchase land, and the title is taken in his wife's name, but the consideration is wholly paid by him, she having in fact no prior legal interest in the land or in the price, an action for the deceit cannot properly be brought in their joint names; he is the only person interested, and should be the sole plaintiff.1 The same has been decided in respect to an action for fraud practised upon a husband and wife by which a conveyance of land was obtained from them. The land thus conveyed was alleged to have been their homestead, but in fact the wife had no legal interest in it, the title having been exclusively in the husband. A joint action to recover damages for the deceit under these circumstances was held to be improper.2 If, however, the wife has a legal interest or ownership in the subject-matter which has been injured or lost by the wrongful act or fraud of the defendant, a joint action in the names of both husband and wife to recover damages is proper. This doctrine has very recently been approved by the New York Court of Appeals, and applied to the 1 Bartges v. O'Neil, 13 Ohio St. 72; Barrett c. Tewksbury, 18 Cal. 334. In the first-named case, the action, being in the names of the husband and wife jointly, was entirely defeated; the misjoinder was made fatal to the recovery by the husband. The second case presented similar facts. The action was by husband and wife to recover damages for deceit practised in the same manner. The land purchased would have been "common property" under the laws of California, that is, property acquired during the marriage, but over which the husband has the entire control. Baldwin J. said (p. 336): "The complaint does not aver that the wife had any special or several interest in the purchase-money paid for this lot, nor in the business which the defendant is charged with having injured by the imputed fraud. At most, the money and the land bought, if the title passed, would seem to be only common property, being possessed or acquired during coverture. For an injury to this, effected by deceit or otherwise, the husband would be entitled to recover; there is no necessity or reason for joining the wife. For any fraud or deceit practised by the defendant, whether the injury was wrought through the form of a contract or not, such injury affecting the common property, the remedy is by the husband alone, who is the representative of the common property, and has the management and control of it." See Stepank v. Kula, 36 Iowa, 563. 2 Read v. Sang, 21 Wisc. 678; but see Simar v. Canaday, 53 N. Y. 298. following state of facts. The owner in fee of land in which his wife had no interest except her inchoate right of dower, was induced by false and fraudulent representations to sell and convey the premises to the defendant by a deed in which the wife joined, and to receive in consideration thereof certain mortgages which were in fact worthless. A joint action by the husband and wife to recover damages for the deceit was sustained, the husband, it was said, being entitled to sue on account of his ownership of the fee, and the wife, on account of her inchoate dower right.1 § 242. When a wife has suffered bodily injury, either by violence or by negligent or unskilful acts of the wrong-doer, and 1 Simar v. Canaday, 53 N. Y. 298, 305, per Folger J. 'Having thus shown that both Simar and his wife had a cause of action, the objection of the defendant, in its exact letter, returns. The objection was that no joint cause of action in favor of the plaintiffs had been made out. The cause of action we have found in the husband is, that he is defrauded of the fee of the premises; that in the wife is, that she is defrauded of her inchoate right of dower, which is contingent upon his title in fee. They are not strictly the same thing, yet they are bound together in the same property; they are taken out of the owners by the same instrument, and that instrument is induced and the two rights are lost by the same fraudulent acts. One recovery will satisfy both claims, and one judgment will be a bar to another action by either of the plaintiffs. The acts of the defendant were done at one time to both plaintiffs, and were an injury to both plaintiffs, inflicted at the same time; hence there is such a common interest in the subject of the suit as to authorize them to join in one suit, although the injury which each sustained is separate and distinct. In equity this rule has often been announced. And the code having abolished all distinction between actions at law and suits in equity, and provided for but one form of action, then enacts, that all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs. Here both plaintiffs have an interest in the subject of the action, and both have an interest in the re lief demanded." This is certainly an extraordinary decision, and introduces a rule before, I think, unthought of,namely, that whenever the owner in fee is induced by fraud to convey his land, and the wife joins in the deed, the two may maintain a joint action and recover a single judgment in solido for their joint damages. Granting that she has a right of action for the loss of her inchoate dower, and even that she and her husband could be made coplaintiffs in one suit, it is plain that they have no common or joint right to damages, and that the damages to which they are respectively entitled must always be unequal. The husband's measure of damage is the ralue of the whole land and of his estate in fee therein; the wife's measure of damage, at most, is the value of her inchoate dower right. Assuming that this inchoate dower is susceptible of measurement, so that the value thereof can be ascertained, it must necessarily be far less in amount than the value of the fee. Yet this decision gives to the wife, in virtue of her inchoate dower, a joint and equal right with her husband in the entire value of the premises which had belonged to him alone. The decision cannot be supported either on principle or on authority; the essential difference between the husband's fixed certain interest, capable of being ascertained, and the wife's uncertain, contingent interest, under all possible circumstances much less than her husband's, seems to have utterly escaped the attention of the court. the injury is of such a nature as to disable her for a while and make medical or other attendance necessary, a joint action is not the proper one in which to recover the husband's damages for his loss of her society and for the expenses caused by the wrong done to her; such damages can only be recovered in an action brought by the husband as the sole plaintiff. If, on the other hand, the compensation sought is for the personal wrong done to her, both must unite as plaintiffs in all those States which follow the general form; as, for example, in suing for a slander or libel upon the wife, the husband and wife must sue jointly, unless he has suffered some special damage, and the object of the proceeding is to obtain compensation therefor.2 The same rule applies to all torts to the person of the wife; for the injuries to her, both husband and wife must join; for the injuries special to him, such as loss of her society, expenses incurred, and the like, he must sue alone. It has even been held in a State where the cause of action for a personal tort survives, that, when a claim for damages against a physician for malpractice existed in favor of a wife, and she died, her husband must be joined as a coplaintiff with her administrator in prosecuting an action to enforce such demand. If the gravamen of the action is a tort to the wife's person, the general rule above stated applies, and the husband must be joined, although the action might be brought in form ex contractu. As an example, if the wife has been injured by the negligence or other wrongful act of a carrier, who was transporting her as a passenger, although the action might be in form based upon the contract of passage made with her, the injury being proved in enhancement of damages, or might be in form directly based upon the tort, yet in either case the very gist of the claim would be the negligent or tortious act of the defendant, and the husband and wife must 1 Kavanaugh v. Janesville, 24 Wisc. 618, action for injuries to wite from a defective sidewalk; Barnes v. Martin, 15 Wisc. 240, assault and battery on wife; Smith v. St. Joseph, 55 Mo. 456, 458; Dailey v. Houston, 58 Mo. 361, 366. 2 Johnson v. Dicken, 25 Mo. 580; Enders v. Beck, 18 Iowa, 86. This lat ter decision was made under a statute different from that which is now in force in Iowa. 3 Long v. Morrison, 14 Ind. 595, 597; McKinney v. Western Stage Co., 4 Iowa, 420. See remark in last preceding note. Dailey v. Houston, 58 Mo. 361, 366; Smith v. St. Joseph, 55 Mo. 456, 458; Rogers v. Smith, 17 Ind. 323; Ohio & M. R R. v. Tindall, 13 Ind. 366; Boyd v. Blaisdell, 15 Ind. 73. 4 Long v. Morrison, 14 Ind. 595. therefore unite as coplaintiffs in order to recover the damages resulting from her personal injuries.1 § 243. The doctrine stated and illustrated in the preceding paragraph obtains alone in those States whose codes conform to the general type. In the few others whose statutes have completely abrogated the ancient principles respecting the marriage relation, the wife must sue alone in her own name in actions based upon torts to her own person, as well as in actions concerning her own property, or in those founded upon her contracts. Cases illustrating this rule as it prevails in New York, have already been given.2 Similar conclusions have been reached by the courts of the other States whose legislation is substantially the same as that of New York. Thus it is held in Iowa, under the existing statutory provisions, that a wife must be the sole plaintiff in an action instituted to recover damages for a malicious prosecution of herself; the joinder of her husband is improper, since the damages when recovered are her own separate property, in which he has no interest or share; and, on the same principle, a suit for a libel upon herself must be brought by the wife alone.1 § 244. While the general rule of the new procedure, as it is found in most States, requires a joinder of husband and wife in actions for torts to her person, she may sue alone to recover damages arising from torts and negligences and other wrongs to her own property; these actions fall within the language of the codes, and plainly "concern her separate property." Thus it has 1 Sheldon v. Steamship "Uncle Sam," 18 Cal. 526; Warner v. The Same, 9 Cal. 697. Each of these cases was an action by husband and wife to recover damages against the carrier, the wife being the passenger. The plaintiffs alleged and proved deceit by defendant, wrongful detention of the passengers, by which they suffered greatly, were made sick, and other personal injuries. The defence relied on a misjoinder of the plaintiffs. Cole J. said (p. 533 of the first case): "We agree that the plaintiffs cannot recover jointly in an action ex contractu, for a breach of the contract; but this does not appear to us a sufficient answer to a recovery in the present case. . . . It is well settled that for an injury done to the per son of a married woman, she must join with the husband in the action; and it is immaterial that the injury is charged to have been committed in violation of a contract. If the act producing the injury be itself tortious, it may be so treated for all remedial purposes, and it would be absurd to hold that, because the wrong done amounts to the breach of a contract, it is therefore purged of its tortious character.” The opinion holds that the common-law rule in the case of torts to wife's person is unchanged in California. |