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had been granted an easement, but of the Pr. 395; Graham v. Tucker, 56 Fla. 307, 25-foot strip reserved and actually occu- 19 L.R.A.(N.S.) 531, 131 Am. St. Rep. 124, pied by the electric company.

47 So. 563; Mayhew v. Burns, 103 Ind. 328, Affirmed and remanded.

2 N. E. 793; Russell v. Phelps, 73 Vt. 393, 50 Atl. 1101; Harrington v. Jagmetty, 83 N. J. L. 548, 83 Atl. 880; Gustine v. Wes

tenberger, 224 Pa. 455, 73 Atl. 913; Schuler MISSOURI SUPREME COURT.

v. Henry, 42 Colo. 367, 14 L.R.A.(N.S.) (Division No. 1.)

1009, 94 Pac. 360; Shane v. Lyons, 172 MINNIE A, BOUTELL, Respti, Mass. 199, 70 Am. St. Rep. 261, 51 N. E.

976; Walker v. Swayze, 3 Abb. Pr. 136; EDWARD F. SHELLABERGER, Appt. Hinds v. Jones, 48 Me. 349; Martin v. Rob

son, 65 Ill. 137, 16 Am. Rep. 578; Greenleaf (- Mo. -, 174 S. W. 384.)

v. Beebe, 80 Ill. 520; Madden v. Gilmer, 40 Husband and wife liability for wife's

Ala. 637; Mhoon v. Colment, 51 Miss. 60;

Bacon v. Bevan, 44 Miss. 293; Harvey v. torts, A man is not, under statutes giving his Johnson, 133 N. C. 352, 45 S. E. 644; Pom. wife the right to manage her separate prop- Code Rem. 222; Bliss, Code Pl. § 86. erty, liable for torts committed in the man. Messrs. Brewster, Kelly, Brewster, & agement of her statutory separate estate, Buchholz and Hogsett & Boyle, for resuch as injuries to a tenant by the operation spondent:

elevator in her apartment house, where he was not present, and did not direct in the management of property owned by

A person injured by the tort of the wife or otherwise participate in the management, her has a cause of action against both the although his express statutory exemption extends only to liability for debts and lia- husband and the wife for such tort. bilities contracted by the wife before mar- Flesh v. Lindsay, 115 Mo. 1, 37 Am. St. riage.

Rep. 374, 21 S. W. 907; Nichols v. Nichols, (March 2, 1915.)

147 Mo. 408, 48 S. W. 947; Taylor v. Pul

len, 152 'Mo. 434, 53 S. W. 1086; Bruce v. A PPEAL by defendant from a judgment Bombeck, 79 Mo. App. 236; Merrill v. St.

of the Circuit Court for Jackson County Louis, 83 Mo. 244, 53 Am. Rep. 576, s. c. in plaintiff's favor in an action brought 12 Mo. App. 466. to recover damages for expenses incurred The plaintiff having a cause of action and loss of services of her minor son on against both Rosa R. Shellaberger and Ed. account of injuries sustained by the alleged ward F. Shellaberger, and being entitled negligent operation of an elevator. Re- by law to one satisfaction therefor, had versed.

the right to bring suit thereon jointly The facts are stated in the Commis. against both or against either, as plaintiff sioner's opinion.

might think proper. Messrs. Marley & Marley, for appellant:

Badgley v. St. Louis, 149 Mo. 122, 50 S. The husband is not liable for the torts W. 817; Noble v. Kansas City, 95 Mo. App. committed by his wife in the management 171, 68 S. W. 969; Hutchinson v. Richmond of her separate estate.

Safety Gate Co. 247 Mo. 110, 152 S. W. 52; Staley v. Ivory, 65 Mo. 74; Gillies v. Winn v. Kansas City Belt R. Co. 245 Mo. Lent, 2 Abb. Pr. N. S. 455; Quilty v. Battie, 412, 151 S. W. 98. 135 N. Y. 209, 17 L.R.A. 521, 32 N. E. 47, 1 Am. Neg. Cas. 177; Peak v. Lemon, 1

Blair, C., filed the following opinion: Lans. 297; Fiske v. Bailey, 51 N. Y. 150;

Respondent lived with her minor son in Baum v. Mullen, 47 N. Y. 577; Rowe v.

an apartment house in Kansas City, and Smith, 45 N. Y. 230; Lansing v. Holdridge, the son was injured by the alleged negli58 How. Pr. 449; Eagle v. Swayze, 2 Daly, gence of the operator of an elevator main140; Mangam v. Peck, 111 N. Y. 401, 18 tained in the building by the owner for the N. E. 617; Choen v. Porter, 66 Ind. 196 ; use of the occupants. Appellant's wife D. Wolff & Co. v. Lozier, 68 N. J. L. 103, owned the building. Under our statute it 52 Atl. 303; Brownson v. Gifford, 8 How. was her statutory separate property, hay

ing been acquired in 1899, and was leased Note. · On the question of the effect of and managed by her, through her agent, inmarried women's acts upon husband's lia dependently of her husband. bility for wife's torts, see notes to Kellar v. This action for damages was begun James, 14 L.R.A.(N.S.) 1003; Jackson v. Williams, 25 L.R.A.(N.S.) 840; and Hage having been had upon the wife, the case

against appellant and his wife. No service Vanderdoes, L.R.A.1915A, 491. BOUTELL V. SHELLABERGER seems to be the proceeded to judgment against the husband only case on the point arising since the last alone, and he appealed. note.

This record presents the question whether

man

a husband is liable for the torts of his wife sonalty. Acts of 1883, p. 113. Ellison and committed by her in the management of Gill, JJ., concurred in the result only. The her separate real property; the husband opinion is to the effect that the wife's conneither being present, directing, or other-tract was void, and that it was as if it had wise participating therein. This question never been; that to sustain the action did has been passed upon in many jurisdictions. not give any effect to the contract, and conIn practically all of them it is held that, in sequently it was, in effect, a simple action circumstances like those in this case, the for the wife's fraudulent representations, husband is not liable. The question has and fell within the general common-law never been squarely decided by this court. rule defining the husband's liability for the

The decisions in other jurisdictions fall wife's torts. Whether we approve or dis. into several classes: First. Those under approve the reasoning employed and the restatutes expressly exempting the husband sult reached, it is clear the decision adds from liability. These are not in point here, nothing to those already mentioned, but because founded upon such statutes. Sec- falls within the same class. ond. Those which hold that the effect of Since these decisions, and their like, deal statutes substantially like ours, affecting only with the simple personal torts of the married women, has been to sweep away all wife, they are not authority beyond that liability of the husband for the wife's torts. field. For such torts the husband was liaThird. Those holding that the husband's ble at common law, and the husband's lialiability for the wife's torts remains un-bility for such torts these cases hold is affected by married women's statutes, and unaffected by the statutes changing the now includes liability in circumstances like status of married women. those in the instant case. These are few. In this case the apartment house was Fourth. Those holding that the married Mrs. Shellaberger's statutory separate eswomen's statutes do not affect the hus- tate. By the express terms of the statute band's liability for the torts simpliciter, ($8309, Rev. Stat. 1909), it was "under the purely personal torts, of the wife, and her sole control” and in no way liable for that this remains as at common law; but her husband's debts. With respect to her that the husband is not liable for the wife's right to manage the property, and to contorts when committed in the management tract and be contracted with, to sue and be of her separate property and out of the sued, and enforce and have enforced against husband's presence, not under his direction, her property any judgments rendered for or and without his participation.

against her, the statute ($ 8304, Rev. Stat. The courts of this state consistently hold | 1909) explicitly provides she shall be that, despite our statutes affecting the deemed a feme sole. status of married women, the husband is Under the common law, had there been still liable for the wife's purely personal no statutes affecting the situation, the hustorts, as at common law. Instances are: band would have been entitled to the use of Nichols v. Nichols, 147 Mo. 407 et seq., 48 S. the apartment house, and the wife could W. 947, in which case the husband and wife have made no contract concerning it, nor were sued by their daughter-in-law for could she have had an agent in connection their act in alienating from her the affec. with it. The statute, however, declaring tions of her husband, their son; Taylor v. that the wife's property, real and personal, Pullen, 152 Mo. 434, 53 S. W. 1086, in which shall be her separate property, and it shall case the basis of the action was slander "be under her sole control," and declaring uttered by the wife, “without the presence, that she “shall be deemed feme sole, so far knowledge, or consent” of the husband; as to enable her to carry on and transact Bruce v. Bombeck, 79 Mo. App. 231, in business on her own account, to contract which case the facts were that the wife and be contracted with, to sue and be sued," (so the jury found) was racing a horse in etc., both excludes the husband as a factor a city street and negligently struck and in- so far as the wife's property, business, and jured plaintiff.

contracts are concerned, and provides remeThe case of Wirt v. Dinan, 44 Mo. App. dies against her in behalf of those who have 583, was in which the wife was rights to enforce. To hold that such a charged with stealing cattle and selling sweeping change in the wife's status introthem to plaintiff, falsely representing them ducing relations and activities on the part as her own, and that she was unmarried. of the wife unknown to the common law, The suit was to recover the amount paid opening a field for torts by the wife which the woman for the cattle. The husband her former status made impossible, left was held liable.

The case arose prior to the husband liable for torts committed by the enactment of the statute capacitating her in connection with the management of the wife to be sued as feme sole, though her separate property, would be not merely she might sue to protect her separate per-' to adhere blindly to an ancient rule, but

one

That case,

women.

to attempt to bring within it things which | 161) opposed to the conclusion that the could not have been within its purview, as husband is not liable in this case. That formerly understood.

act is to the effect that "the husband's The statutes wholly emancipate the wife, property, except such as may be acquired at least so far as her separate property is from the wife, shall be exempt from all concerned, and open new fields of endeavor debts and liabilities contracted or incurred closed to the wife by the common law. by his wife before their marriage." Since the husband is left no legal right to In Nichols v. Nichols, 147 Mo. 407 et intermeddle with the business affairs and seq., 48 S. W. 947, it was said that “upon property of the wife, it is not logical to the familiar principle of expressio unius, admit him to her new sphere solely that ewclusio alterius," the act was "a positive he may pay damages for torts the wife expression of the legislative intent as to commits therein, excluding him for all other the extent to which” the married women's purposes.

statutes should exempt the husband from The great weight of authority supports liability for the wife's torts. the conclusion that the husband is not lia- however, involved the question as to the ble in this case. Quilty v. Battie, 135 N. Y. husband's liability for the wife's torts sim201, 17 L.R.A. 521, 32 N. E. 47, 1 Am. Neg. pliciter. It cannot be supposed that the act Cas. 177; Rowe v. Smith, 45 N. Y. 230; was intended to extend the field of the Henley v. Wilson, 137 Cal. loc. cit. 274, 58 husband's liability. When it was passed L.R.A. 941, 92 Am. St. Rep. 160, 70 Pac. (in 1881) the wife could have no statutory 21, citing Pom. Rem. & Rem. Rights, $8 separate estate in realty. Such separate 320, 321; D. Wolff & Co. v. Lozier, 68 N. estate as she might have called for a trusJ. L. loc. cit. 107, 52 Atl. 303; Harrington tee and was equitable. Besides the act of v. Jagmetty, $3 N. J. L. 548, 83 Atl. 880; 1881 can hardly be held to modify the effect Cooley, Torts, 3d ed. $ 135, p. 197; Vanne of the acts of 1889, relating to married man v. Powers, 56 N. Y. loc. cit. 43.

The re-enactment of the act of It is urged, however, that in Flesh v. 1881 in the revised bill of 1889 merely conLindsay, 115 Mo. 1, 37 Am. St. Rep. 374, tinued it as before, and added nothing to 21 S. W. 907, this court passed upon the its force or effect. The construction given question here involved and committed it the act of 1881 in Nichols v. Nichols, supra, self to the position opposed to that taken is fully preserved by applying it now to in the cases just cited. An examination of the legal status in the light of which it was the authorities in other jurisdictions dis- first enacted. This was all that was done closes that such is the general reputation in the Nichols Case. of the case of Flesh v. Lindsay. Such, how- We conclude that, under the facts of this ever, is not its character. In that case the case, appellant is not liable. The judgment principal question discussed was whether is reversed. the wife could be held for loss caused the falling, in 1887, of a party wall weak- All concur; Woodson, J., in separate ened by the negligence of workmen making opinion. repairs on a building erected on a lot inherited by the defendant wife in 1877. The Woodson, J., concurring: workmen were employed by the husband, I fully concur in the opinion of my with the knowledge and consent of the wife. learned associate filed in this case, not only That case is not in point, as appears from for the reasons therein stated, but for the the facts: (1) That the property there in further reason I never have nor never will volved was not the separate property of subscribe to the doctrine that the husMrs. Lindsay, as the court expressly states band is responsible for any of the torts of in the opinion, and as the facts stated his wife, those committed after the enactclearly show; (2) that the statutes making ment of the married woman's act of 1889. the wife's realty her separate property, There was a show of reason and justice and declaring it should be under her sole for that rule prior to the emancipation of control, and declaring she should be deemed the wife and property from the grasp of the a feme sole with respect to her right to husband. Then he took possession of her transact business, contract and be con person and property by nature of the martracted with, sue and be sued, were not riage; they becoming one, and he that one, enacted until 1889, two years after the tort and as an incident thereto he swallowed was committed in 1887, and were prospec- up her property also. Having thus abtive in effect; (3) and that the real ques. sorbed the personnel of his wife and her tion discussed was not the husband's lia- property, it was considered but just that bility, but that of the wife. Flesh v. Lind- he should assume all of the responsibilities say is not in point.

for which she otherwise would have been Nor is the act of 1881 (Laws 1881, p.' liable. Otherwise no redress whatever could have been had for the torts committed by and foresight in providing the fence as a her.

protection, which was sufficient to measure But now, under the liberal legislative up to the duty that it owed. enactments and judicial rulings, completely Briscoe v. Henderson Lighting & P. Co. emancipating the wife from her husband in 148 N. C. 396, 19 L.R.A.(N.S.) 1116, 62 S. all property and business relations, it seems E. 600; Ferrell v. Dixie Cotton Mills, 157 to me that there is no longer a vestige of N. C. 528, 37 L.R.A.(N.S.) 64, 73 S. E. 142, law, reason, or justice left upon which to 3 N. C. C. A. 306; Greer v. Damascus Lumbase a claim for damages against the hus. ber Co. 161 N. C. 144, 76 S. E. 725; Benton band for the separate torts of the wife. v. North Carolina Public-Service Corp. 165 Such rulings are, in my opinion, wrong in N. C. 354, 81 S. E. 448; 3 Shearm. & Redf. morals and a travesty upon justice. Neg. 6th ed. $ 705, p. 1846; Richards v.

Connell, 45 Neb. 467, 63 N. W. 915.

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Clark, Ch. J., delivered the opinion of the NORTH CAROLINA SUPREME court: COURT.

This is an appeal from a judgment of

nonsuit. The plaintiff's intestate, a bright W. C. STARLING, Admr., etc., of Alma little boy five years of age, was drowned Starling, Deceased, Appt.,

in a reservoir on defendant's premises Sat.

urday afternoon, February 20, 1909. The SELMA COTTON MILLS.

reservoir was about 50 feet around, with a

brick wall around it. It was 2 or 3 inches (168 N. C. 229, 84 S. E. 388.)

from the top of the brick wall to the water Negligence dangerous premises

on the inside. Rev. Mr. Morris testified injury to child.

that there had been a fence around the 1. A mill owner is negligent in permitting reservoir, and that there was still “ a fence inclosing a reservoir with perpen: a piece of one there at the time of the dicular sides, and filled with 7 or 8 feet of drowning of the little boy, Alma Starling.” water, to the top of which a sloping embank. He testified that the fence was put up with ment leads on the outside, to become dilapidated, when the reservoir adjoins the play- post-oak posts skinned and the bark taken ground of the children of the mill operatives, off, and slatted up between the posts, which so as to be liable for the death of a five were 8 feet apart, with slats fastened with year-old boy who, while at play, crawls small nails. These slats were 3 inches through the fence for a drink and is , apart at the bottom, and wider apart going drowned.

up, till they were 8 inches apart at the top. Judgment nonsuit - res judicata. The fence was 31 or 4 feet high. This 2. A voluntary nonsuit is not res judicata. reservoir was close to the mill and near the

tenement houses of the operatives, and their (March 3, 1915.)

small children played around it almost A PPEAL by plaintiff from a judgment of every day, rolling their hoops up and down

the Superior Court for Chatham Coun the platform on the side of the reservoir. ty granting a nonsuit in an action brought The father of Alma Starling, who was a to recover damages for the death of his in- mill operative, lived 210 feet from the testate which was alleged to have been

reservoir. The witness testified further: caused by defendant's negligence. Reversed. “The fence around the reservoir was deThe facts are stated in the opinion.

cayed and rotted and falling down. Some Messrs. A. Jones & Son and Douglass of it had fallen off. There were several & Douglass for appellant.

places around the reservoir where the slats Messrs. L. H. Allred, F. H, Brooks, and had fallen off, mostly on the side of the Manning & Kitchin, for appellee:

street where they had hauled coal. The Defendant had exercised reasonable care slats had fallen off at the bottom. There

Note. The doctrine of attractive nuis- | v. Thompson, L.R.A. 1915A, 731. For the ance is the subject of an extended note ap- application of the doctrine to walls, fences, pended to Cahill v. Stone, 19 L.R.A. (N.S.) etc., see note to Coon v. Kentucky & I. Ter1094. The specific question as to the ap- minal R. Co. ante, 160. plicability of the doctrine to ponds, reser- Various other concrete aspects of that voirs, waterways, etc., is discussed at page doctrine are treated in notes which may be 1143 of that note, and in the later note to found by consulting the Index to L.R.A. Thompson v. Illinois C. R. Co. 47 L.R.A. Notes, "Negligence," SS 23, 23a. (N.S.) 1101. And see also later cases in Generally as to duty of property owner to this series, Riggle v. Lens, L.R.A. 1915A, trespassing children, see note to Walsh v. 150; Romana v. Boston Elev. R. Co. L.R.A. Pittsburg R. Co. 32 L.R.A.(N.S.) 559. 1915A, 510; and Cour d'Alene Lumber Co.

was

was

one hole in the fence I could crawl, to be guilty of contributory negligence. through. That hole was something like 10 But even in that case was said that, feet from the place where the body was when children are trespassers, liability will found. There were three places where the be enforced in many cases where there fence had rotted down. I had talked with would be no liability if the injury had Mr. Rose, the superintendent, about the been sustained by persons of maturer age. condition of the fence, and heard him speak The humane judge who wrote that opinion about it. It had been in that condition , says on page 411 of 148 N. C.: An “infor some time. Pretty soon after this fant who enters upon premises, having no drowning I got orders to put the fence up. legal right to do so, either by permission, The reservoir was about 15 feet from the invitation, or license, or relation to the mill. There a passageway between premises or its owner, is as essentially a the reservoir and the mill. There is a slop- i trespasser as an adult; but if, to gratify a ing earth bank on the outside that leads up childish curiosity, or in obedience to a childto the top of the wall on which the fence ish propensity excited by the character of was built."

the structure or other conditions, he goes The water on the inside, he said, came thereon and is injured by the failure of within 2 or 3 inches of the top of this wall. the owner to properly guard or cover the The posts were & feet apart, and the wall dangerous conditions which he has created, was 16 or 18 inches broad at the top. The he is liable for such injuries, provided the slope of the wall on the outside was grad. facts are such as to impose the duty of ual.

anticipation or prevision; that is, whether, There is also evidence that small children under all of the circumstances, he should were playing about the reservoir and all have contemplated that children would be around it every day. The reservior was 25 attracted or allured to go upon his premises or 30 steps from the front end of the mill. and sustain injury." Small children of varying ages played around

But in this case these children were not the reservoir, where there was a grassy trespassers. They were five or six years place and trees for the children to play. old, and were at their usual playground,

One of the little companions of the de- where they went every day, which fact was ceased boy testified that Alma went through necessarily known to the management of the hole in the fence to get some water to the mill. This playground was in the imdrink in the tin cup, and fell in and was mediate proximity to the reservoir and to drowned; that he easily went through the the mill, and the officials knew the danger hole near the bottom of the fence, which of the children falling in there either was 12 to 18 inches wide,

in their play or in attempting to get There were several witnesses who testi- water to drink, as this little boy did. The fied to the same effect, that the reservoir, outside bank was sloping, and the chilwhich was 7 or 8 feet deep, was surrounded dren could climb up easily and would be by a fence which had been suffered to be tempted to do so naturally. On the income dilapidated, with many holes through side the water came up within 2 or 3 it, and that children five or six years old inches of the top, and the wall on the inand under were in the habit of playing side was perpendicular, with the water 7 around the reservoir, and that the manage- or 8 feet deep. A more dangerous situament of the mill knew of it.

tion could not have been devised. The It does not admit of debate that the fact management of the mill were aware of the that such a dangerous place was unguarded danger, as is shown by their putting a fence by a secure fence where children of that age around it. Indeed, the danger was selfwere allowed to play was culpable negli- evident. The children were those of the gence on the part of the officers of the de-operatives of the mill, and were, so to fendant. The very fact that a fence had speak, on their own grounds. They were been put up, of itself, shows that these not trespassers certainly. There is much authorities were aware of the danger. To evidence that the fence was dilapidated, and permit it to become dilapidated was negli- direct testimony that the little boy went gence. It may be that, if the defendant through a hole in the fence near the ground. had put on evidence, a different state of There was evidence that his playmate told facts could have been shown or matters him that it was dangerous, but the child in excuse.

But, upon the evidence before I was too young to be guilty of contributory it was clearly error to grant a nonsuit. negligence. This case has no resemblance to Briscoe The fact that a nonsuit had been formerv. Henderson Lighting & P. Co. 148 N. C. ly taken is not res judicata. Hood v. West396, 19 L.R.A.(N.S.) 1116, 62 S. E. 600. ern U. Teleg. Co. 135 N. C. 627, 47 S. E. That decision was put upon the ground that 607, and cases there cited; Helms v. Westthe child was a trespasser and of an age'ern U. Teleg. Co. 143 N. C. 394, 8 L.R.A.

us,

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