In Poulin v. Graham, 102 Vt. 307, 147 A. 698, where the wife sued the employer of her husband for a tort committed by the husband in pursuit of the master's business, the court held that while the liability of the master was purely of a derivative character, the right of the wife to proceed against him was in no sense subordinate or secondary to her right to sue her husband, the servant.Summary of this case from Worrell v. Worrell
Opinion filed November 13, 1929.
Fact Treated as Established by Parties at Trial — Construction of Record on Defendant's Motion for Directed Verdict — Master and Servant — Right of One Injured by Servant's Negligence To Proceed against Master — Right of Action by Married Woman Injured by Husband's Negligence While Latter in Business of Employer.
1. In action of tort for negligence, where plaintiff was injured while riding in defendant's truck with his consent and as guest of driver thereof, who was then in employ of defendant and acting within his employment, relationship between driver and plaintiff as husband and wife at such time held established, in that transcript plainly showed that throughout trial everybody connected with it understood that such relation existed at time mentioned.
2. On defendant's motion for directed verdict in his favor, while Supreme Court is required to construe record against defendant, record must also be construed reasonably.
3. Right of one injured by servant's negligence to proceed against master under doctrine of respondeat superior is in no sense subordinate or secondary to right against servant, but is primary and independent, and is not affected by plaintiff's inability to sue servant nor dependent on right of master to sue him.
4. Married woman, injured by negligence of husband in operation of truck belonging to employer and in employer's business, in which she was riding as guest with latter's consent, held to have right of action, against husband's employer, even though she could not sue her husband therefor.
ACTION OF TORT for negligence. Plea, general issue. Trial by jury at the June Term, 1929, Addison County, Buttles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.
J.A. McNamara for the plaintiff.
A married woman at common law cannot sue her husband in tort for negligence, and statutes enlarging her right to use and to maintain an action in her own name for personal injuries, are generally construed as not authorizing her to maintain an action against her husband for such injuries, but merely authorizing her to maintain alone such actions as previously could be sustained when brought by the husband alone or by husband and wife jointly. Thompson v. Thompson, 218 U.S. 611; Fiedler v. Fiedler, 42 Okla. 124; Brown v. Brown, 88 Conn. 42; Bandfield v. Bandfield, 117 Mich. 80; Longendyke v. Longendyke, 44 Barb. (N.Y.) 367, 29 A.L.R. 1482; 13 R.C.L. 1426; Spiller v. Close, 110 Maine, 302; Wolf v. Baumereis, 72 Md. 481; Libby v. Berry, 74 Maine, 286; Dishon v. Dishon, 187 Ky. 497.
The weight of authority is that where a wife cannot sue her husband in an action for personal injuries, she cannot maintain such an action against her husband's employer, when the alleged negligence is that of her husband in the course of his employment. Maine v. Maine Son's Co. (Iowa), 201 N.W. 20, 37 A.L.R. 161; Emerson v. Western Seed Irrigation Co., 216 N.W. 297.
Although in ordinary cases, negligence of a driver would not be imputable to one driving with him, an exception to the rule prevails where a wife is riding with her husband, she being, by reason of the marital relationship, especially under the care of her husband, and under such circumstances the negligence of the husband is imputable to the wife, and prevents recovery by her. 13 R.C.L. 1438; Nesbit v. Garner, 75 Iowa, 486, 8 L.R.A. (N.S.) 656, Ann. Cas. 1912A, 648, 650.
Allen R. Sturtevant and Wayne C. Bosworth for the plaintiff.
The transcript fails to show that plaintiff and husband's servant who was driver of the automobile at the time of the accident were then husband and wife. No presumption in this respect aids the excepting party, for the presumption of coverture is prospective from the time when it is shown to exist, and not retrospective, and the bill of exceptions should be construed against the excepting party. Erskine v. Davis, 25 Ill. 251; Reynolds v. Bean, 91 Vt. 247, 249.
Under G.L. 3521 and 3524, the rights of married women have been greatly enlarged; and considering the purpose in the minds of the legislators in enacting this legislation, and the construction placed thereon by the Supreme Court, the plaintiff says that the wife may now bring a suit against her husband in this State for bodily injuries caused by his negligence. G.L. 3521, 3524; Wright v. Burroughs, 61 Vt. 390; Story v. Downey, 62 Vt. 243.
Even if the wife may not bring an action against her husband for personal injuries caused by his negligence in driving an automobile, it does not follow that she may not bring such action against her husband's employer, when injuries were received by negligence of her husband while operating such automobile within the line of his duty for his employer. Schubert, Appt. v. Schubert Wagon Co. (N.Y.), 223 App. Div. 502, Affirmed 249 N.Y. 253, 164 N.E. 402; Star Brewery Co. v. Hauck, 222 Ill. 348.
The great weight of authority is that the negligence of a husband is not ordinarily imputed to his wife in case she is injured by his and another's concurring negligence. See cases cited Note 8 L.R.A. (N.S.) 656; Southern Railway Co. v. King, 128 Ga. 383; Louisville, etc., R.R. Co. v. McCarthy, 129 Ky. 814.
Present: WATSON, C.J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.
The plaintiff was injured while riding with her husband in a truck which he was driving for the defendant who employed him. The negligence of the husband, the fact that he was acting within his employment at the time, that the plaintiff was riding by permission of the defendant, and was free from contributory negligence, were established by a verdict in her favor. By a motion for a verdict seasonably filed, the defendant questioned the right of the plaintiff to recover in an action predicated upon the personal negligence of her husband, though he was then acting as the defendant's servant. This motion was overruled and the defendant excepted.
The plaintiff argues that there is nothing in the record to show that the Poulins were husband and wife at the time of the accident. We take no time with this claim as the transcript plainly shows that throughout the trial everybody connected with it understood that that relation existed at the time mentioned; and while we are to construe this record against the defendant, Higgins, Admr. v. Metzger, 101 Vt. 285, 298, 143 A. 394, we must construe it reasonably, Hanley v. Poultney, 100 Vt. 172, 174, 135 A. 713, 54 A.L.R. 371. It would be doing violence to its plain meaning to sustain this claim of the plaintiff.
In support of the exception to the ruling on his motion for a verdict, the defendant insists that a wife cannot sue her husband in a tort action for negligence, and that it logically follows that she cannot sue his employer for her husband's negligence, since the employer would have an action over against the husband, and thus the allowance of an action like this one would be, in effect, an indirect action by her against her husband.
This claim of the defendant finds support in Maine v. Maine Sons Co., 198 Iowa, 1278, 201 N.W. 20, 37 A.L.R. 161; Riser v. Riser, 240 Mich. 402, 215 N.W. 290; and Emerson v. Western Seed Irrigation Co., 116 Neb. 180, 216 N.W. 297, 56 A.L.R. 327. However, we are unwilling to adopt the rule contended for.
For the purposes of this review, we will assume that a wife cannot sue her husband for negligence, as the cases cited, and others, hold. But we cannot admit that her right to sue her husband's master is, for that reason, foreclosed. It is true, as argued, that a master may recover from an offending servant such damages as he is compelled to pay on account of the latter's negligence. But the doctrine of respondeat superior is not affected by the plaintiff's inability to sue the servant; nor does it all depend upon the right of the master to sue him. Star Brewery Co. v. Hauck, 222 Ill. 348, 78 N.E. 827, 113 A.S.R. 420, 424. Evidence bearing upon either of these questions would be irrelevant to the issue raised in a case like this. The right to proceed against the master is in no sense subordinate or secondary to a right against the servant. It is primary and independent. This is all covered, and the wife's right to sue the master established, by Schubert v. Schubert Wagon Co., 249 N.Y. 253, 164 N.E. 42, the reasoning and result of which accord with the present day status of married women in this jurisdiction and are satisfactory to us.
Consonant with these views are the cases involving the contributory negligence of the husband, wherein it is generally held that from the mere relation of the parties such negligence of the husband is not to be imputed to the wife and does not bar her recovery. Thus in McDonald v. Levenson, 238 Mass. 479, 131 N.E. 160, a wife was riding with her husband in an automobile which was in collision with the defendant's car through the concurring negligence of the defendant and the husband. It was held that she might recover. In Louisville, etc., Ry. Co. v. Creek, 130 Ind. 139, 29 N.E. 481, 14 L.R.A. 733, a wife riding with her husband was injured by the negligence of a railroad company. Her husband was guilty of contributory negligence. It was held that this did not preclude a recovery in her behalf. To the same effect are Bailey v. Centerville, 115 Iowa, 271, 88 N.W. 379; Louisville Ry. Co. v. McCarthy, 129 Ky. 814, 112 S.W. 925, 19 L.R.A. (N.S.) 230, 130 A.S.R. 494. See, also, Nash v. Lang (Mass.), 167 N.E. 762, and Ann. Cas. 1912A, 648.
Reference ought, perhaps, to be made to Carlisle et ux. v. Sheldon, 38 Vt. 440. That was an action against a town for injuries sustained by a married woman by the insufficiency of a highway. The court charged the jury that if the husband of the injured wife, was, at the time of the accident, guilty of negligence contributing to such injuries, there could be no recovery, though the insufficiency of the highway was established. This instruction was sustained. The decision was based upon two grounds: (1) That the husband stood as the servant of the wife in his management of the horse he was driving; and (2) that the wife was under the care of the husband, who had the custody of her person and was responsible for her safety. The reasoning is unsound. The fallacy involved in the first ground was pointed out in Wentworth v. Waterbury, 90 Vt. 60 at page 62, 90 A. 334 — a case which was followed in Bancroft's Admx. v. Cote, 90 Vt. 358, at pages 361, 362, 98 A. 915. The second ground is predicated on Holly v. Boston Gas Light Co., 8 Gray (Mass.) 123, 69 A.D. 233, which was the case of a parent and child, the doctrine of which is wholly contrary to Howe v. Central Vt. Ry. Co., 91 Vt. 485, 493, 101 A. 45.