
    FREDERICK W. MUSER, et al., Respondents, v. JOSEPH LEWIS, Impleaded, &c., Appellant.
    
      Decided June 26, 1884.
    
      Husband and wife—Liability of husband, for torts committed by wife.
    
    The common law respecting the liability of a husband to answer in damage for torts committed by his wife, still prevails, and is substantially in force.
    The statutes of this state authorizing a married woman to hold and manage an estate separate from her husband, and to carry on a sole and separate business, and receive-her profits and earnings therefrom, and to sue and be sued in regard to such estate and business, have not changed the common law in this respect, except in regard to torts committed by her in the management or control of her separate property.
    Where a wife carries on a separate legitimate business, and during the time is guilty of conversion in receiving stolen goods, the husband is liable to answer in damages. A married woman cannot carry on a busi ness of receiving stolen goods, and such goods do not become her property, for the title always remains in the person from whom they were stolen, and consequently this tort of the wife does not relate to, nor is it consequent upon the management or control of her separate property.
    Gerald «. Quam, 10 Abb. N. 0. 28, criticised.
    Partial satisfaction or payment of damages by one tort-feasor,—e. g., in an action for conversion,—inures to the benefit of other joint tort-feasors not as matter of defense, but by lessening the measure of damages.
    Before Sedgwick, Ch. J., and Ingraham, J
    Appeal by defendant Joseph Lewis from a judgment entered upon a verdict in favor of plaintiffs.
    Action for tort of wife in which the husband was joined as party defendant.
    At the close of the case a motion was made on behalf of the appellant, to dismiss the complaint as to him, substantially upon the following grounds: .1st. That there was no evidence in the case connecting him personally, with any of the tortious acts. 2d. That the defendant Mrs.Lewis, the wife of appellant, had used her separate means and estate in the transactions, and the same were the results of her separate business, and that her husband the appellant had no interest therein, nor connection therewith. The motion'was denied by the court upon the ground that the husband was liable for the tort thus committed by his wife to which exception was taken.
    Further facts appear in the opinion.
    
      David Leventritt, for appellant.
    I. The common law rule respecting the liability of the husband no longer prevails. Prior to the Code of Civil Procedure it was imperative to join the husband as a defendant with the wife in an action for her personal torts, so long as the relation of the husband and wife continued ; but the necessity of such joinder was not because he was liable. Mr. Bishop, in his work on “ The Law of Married Women,” says: “ It is not true, speaking accurately and scientifically, that the husband is liable for the torts of his wife. For example, if she commits a tort and dies before suit brought, he cannot be sued for it, and is in no way responsible. On the other hand, if he dies, she may then be sued alone, the same as though she had been discovert when* the tort was committed. If during their joint lives an action is- brought against the two, and he dies pending suit, the action survives against the wife. The liability, therefore, of the husband, for the wife’s torts, grows merely out of the fact, that, by the rules of the common law, a suit cannot be maintained against a wife alone during coverture, and if the two could not be sued together, the party suffering the injury would be without remedy” (2 Bishop Married Women, § 254; to similar effect see Cooley Torts, 115 ; Capel v. Powell, 17 C. B. N. S. 743; Larkin v. Marshall, 4 Exch. R. 805 ; Newton v. Boodle, 9 Q. B. 948 ; Kowing v. Manly, 49 N. Y. 192). The reason of the rule ceasing to exist by the provisions of the Code of Civil Procedure (§ 450) the rule- itself is abrogated.
    II. The husband is not liable for the torts of his wife (Gerald v. Quam, 10 Abb. N. C. 28 ; Trebing v. Vetter, reported in note, 12 ld. 302; Muser v. Miller, 12 ld. 305). The English courts under a somewhat similar provision to our own have reached the conclusion that the mere existence of the marital relation does not require the husband to be joined as a party with his wife in an action or proceeding which, were she sole, might be brought by or against her (Re Outwin’s Trusts, 48 Law Times, R. N. S. 410 ; James v. Barrand, 31 Weekly Rep. 786; Abonloff v. Oppenheimer [Q. B. Div.], 30 Id. 429 ; Re Fisher’s Trusts, 30 Id. 56 ; Goods of Ayres, 31 Id. 660). In Baum v. Mullen, (47 N. Y. 577), Chief Justice Church adopts this language: “The only question presented for our decision is whether the joinder of the husband with the wife is necessary, in an action for fraud in a contract for sale of the real estate of the latter made by the former as the agent of the wife. We are of opinion that such joinder is not necessary.” To same effect, Rowe v. Smith (45 N. Y. 230); Fiske v. Bailey (51 Id. 150); Vanneman. v. Powers (56 Id. 39); Peak v. Lemon (1 Lans. 295); Gillies v. Lent (2 Abb. Pr. [N. S.] 455) ; Lansing v. Holdridge (58 How. 449). Now, in the case under consideration, it appears that the transactions were had by the wife, Mrs. Lewis, without the knowledge or participation of her husband, the appellant, that she carried on a separate- business, made purchases and sales for her own account, her separate means were invested in the transaction with Madden, and from them, she alone reaped the benefit. She thus had a separate estate—to wit: the moneys invested and subsequently the property acquired through such investment, and the tort was committed in the prosecution of her separate business, and for her exclusive gain, and thus this action clearly affected her separate property. What force is given to section 450 of the Code of Civil Procedure, if the husband is properly joined in this action % Even if the motion to dismiss as to the appellant was properly denied, it was error to refuse the request to charge “ that if the jury believe Mrs. Lewis’ testimony to the effect that her own individual money only was invested in the transactions, and that she alone received the benefit of them, that no verdict can be rendered against her husband,” and the exception thereto was well taken, as also the exception to the statement made by the learned court to the jury “ that if they believe the testimony of Madden, they will find a verdict against Mrs. Lewis and her husband.” ■ •
    - III. Partial satisfaction by one enures to the benefit of other joint tort-feasors (Knapp v. Roche, 18 Week. Dig. 324 ; Bush v. Prosser, 11 N. Y. 347 ; Wilmarth v. Babcock, 2 Hill, 194). Evidence óf satisfaction, in whole or in part by one joint tort-feasor, of the damages occasioned by the joint wrongful act of both, is proper in mitigation of damages (Knapp v. Roche, supra). Satisfaction by one joint tort-feasor has always been held to be available as a bar to an action against another (Livingston v. Bishop, 1 Johns. 291 ; Thomas v. Rumsey, 6 Id. 31; Bronson v. Fitzhugh, 1 Hill, 185 ; Knickerbocker v. Hawes, 8 Cow. 111; Brown v. Kinchelse, 3 Cold. 192; Merchants’ Bank v. Curtis, 37 Barb. 317 ; Ruhle v. Turner, 2 H. & N. 38; Robertson v. Smith, 18 Johns. 481 ; Pearce v. Pearce, 25 Barb. 243; Pouting v. Watson, 32 Eng. L. & E. 116; Barrett v. Third Avenue R. R. Co., 45 N. Y. 628; Woods v. Pangburn, 75ld. 495).
    
      D. M. Porter, for respondents.
    I. In case the wife is the sole offender in committing the criminal act, the husband must be sued jointly for the damages arising therefrom (Horton v. Payne, 27 How. 374; Tait v. Culbertson, 57 Barb. 9; Wagener v. Bill, 19 Id. 321). The authority given to a married woman to carry on a sole and separate business, and to have her earnings in such separate business, leaves the other common law inabilities in existence (Coleman v. Burr, 93 N. Y. 17).
    The common law liability of the husband for the wife’s crimes continues in full force (Bertles v. Nunan, 92 N. Y. 152).
    In Dimelon v. Rosenfeld (N. Y. Daily Register, June 29, 1878, page 1241), Chief Justice Sedgwick rendered the following opinion : “ Although I believe the learned counsel has stated correctly the reasons of the husband being joined as a party in an action against his wife for her separate tort, nevertheless in case of judgment against them, he has to make satisfaction by his body or property. This was true, whether or not the wife has brought to the husband any property, so that practically the plaintiff has the right to resort to the husband’s property or body for his wife’s tort. I am not convinced that this right has been destroyed by the effect of recent legislation as to married women. If this be right, it may properly be enforced against the husband by joining him as a party with his wife. Section 450 does not forbid the joining of any party as defendant with a married woman in a proper case.” See also Berrien v. Steel (1 Civ. Pro. R. 279 ; Fitzsimons v. Harrington, Id. 360 ; Hoffman v. Lachman, ld. 278).
    In the case at bar, Mrs. Lewis was perpetrating a felony and not carrying on any separate business. She was receiving the goods, knowing them to be stolen, consequently her husband is liable for this tort, because she never acquired title to the property in question, not even a color-able one, inasmuch as the whole transaction was a felony, and even without the testimony of Madden that she received the laces, knowing that they were wrongfully obtained, the fact (which is uncontradicted) that she bought them for one-eighth of their value, and the numerous lots which she herself testifies she obtained from Madden, constituted receiving stolen goods for which she might have been convicted (Copperman v. People, 56 N. Y. 591; People v. Cochrane, 1 Wheeler Cr. C. 81 [84] ; People v. Teal, Id. 199 [201]).
    The other cases were decided before Bertles v. Nunan (supra), and are, where the wife had lawfully acquired title to the property, and some injury was done with, by, or by reason of, it; but a married woman cannot carry on a separate business of receiving stolen goods, nor is the fact she used her own money as a means to induce the thief to deliver the goods to her, of any more force than if she had used her own axe to cut the plaintiff’s hand off. She could acquire no title to the plaintiff’s property by her procedure ; it could neither be absorbed into nor benefit her separate estate, consequently, in the commission of such a crime, she made her husband liable. No one can acquire title to goods through the commission of a theft or by receiving stolen goods (Hoffman v. Carow, 20 Wend. 21; 22 Id. 285; Conlan v. Latting, 3 E. D. S. 353 ; Brower v. Peabody, 13 N. Y. 121).
    II. No demand for the goods was necessary. 1st. Because they were received from the thief, knowing that they were stolen, the evidence on that subject being uncontradicted (Pease v. Smith, 61 N. Y. 477 ; Glassner v. Wheaton, 2 E. D. S. 352). 2d. Because the goods had been delivered to Mrs. Miller, and the demand would have been idle. After actual conversion no demand is necessary (Glassner v. Wheaton, 2 E. D. S. 352 [354]; Vincent v. Conklin, 1 ld, 203 [212]; Sharp v. Whipple, 1 Bosw. 557).
   By the Court.—Sedgwick, Ch. J.

The action was substantially for the conversion of plaintiff’s personal property. The appellant was impleaded with other defendants in said action, and Fanny Lewis, one of the defendants so impleaded, is the appellant’s wife. The proof showed that she was guilty of the actual conversion, and her husband, the appellant, did not participate in it. The claim against him was grounded on the proposition that he was liable in damages for his wife’s tort.

The testimony showed that a clerk of the plaintiffs’ stole from them, through a long, time, a great quantity of laces, and from time to time sold them in parcels to the appellant’s wife. The verdict was not taken as to whether she knew that they had been stolen.

In Baum v. Mullen (47 N. Y. 579), the court declared that the statutes in reference to married women, had not altered the common-law liability of the husband for the personal tort, of his wife, but that such rule was changed by the statutes of 1860, chapter 90, and 1862, chapter 172, when such torts are committed in the management and control of her separate property. In Rowe v. Smith (45 N. Y. 233), Judge Andrews said, referring to these statutes, that “ they leave unaffected, this liability for the strictly personal torts of the wife.”

Both of these cases were directed to the necessity of joining the husband as defendant with the wife, in a charge of tort done by her. In the first case the tort was obtaining money by false representations of the agent of the wife, in contracting for the sale of her separate property, she receiving the money. The court said that the statutes of 1860 and 1862 provide that “ the wife may sue and be sued in all matters having relation to her.sole and separate property,” and further that the action was clearly for “ matters having relation to her sole and separate property.” The matters related “ to the management and disposition of her property.”

In the second case, the action was for damages to the plaintiff by the escape of the cattle of the defendant from land which was her separate property, and their trespassing upon defendant’s land. The court said that the action was founded upon the duty of the owner of land to keep domestic animals from straying upon and injuring the premises of other’s, Such a duty had relation to the property that might be owned solely by a married woman, and that therefore, under the statutes of 1860 and 1862, she might be sued in the same manner as if she were sole.

Neither of the cited cases will support the present recovery, if the tort done by the appellant’s wife related to her sole or separate property. On the other hand, if the tort did not relate to the wife’s property, the principles stated in the cases make the appellant liable.

If the terms of the statutes are not to be enlarged by construction, for the reason that their meaning is clear without it, it would seem to be certain that the title to the goods always remained in the plaintiffs, and that they never became the property of appellant’s wife. Therefore the tort did not relate to the wife’s separate property. If it be supposed that the wife did gain a property of some kind by the transaction, the tort was a separated matter from that which had the appearance of conferring title, and had no essential connection with it, and so the tort was personal to the wife, as distinguished from one relating to her property.

A reference to another part of the statutes should be made. Section 2 of the Laws of 1860, chapter 90, provides that a married woman may carry on any trade or business, and perform any labor or services on her sole and separate account. Coleman v. Burr (93 N. Y. 17), shows that the generality of the clause as to services should be restrained, so that it does not include services done by the wife, for her husband and the family. The ground of the decision was that the objects which were to be obtained by the statutes, and the mischiefs which they were intended to remedy, suggested that there should be such a restriction, also considering that the common or former law remains, excepting to the extent it is clearly annulled by a subsequent statute (Bertles v. Nunan, 92 N. Y. 152). In like manner, it may be said as to the power of a married woman to carry on any trade or business, on her own account, that it was not intended to embrace a personal tort that had no real connection with trading or carrying on a business. In a sense, it is an anomaly, in view of the real independence personally of a wife, that her husband should be liable for her tort of which he. may know nothing, when and where and how it was done. The hardship is not increased by his being liable for a tort, the time of which is within the hours a wife may chose as the time when she says she is transacting her business, and at the place where her business is done, and it has but a circumstantial, but no real connection with buying or acquiring.

Several parts of the statutes indicate that they do not contemplate a sole liability of the wife for a tort, incidentally committed by her, when she was carrying on a separate business.

The first section of chapter 90, Laws of 1860, provides that the property which any married woman acquires by her business carried on, on her separate account, shall be her separate property. Section 2 is, the earnings from her trade shall be her separate property. Section 8 provides that no bargain or contract entered into by any married woman, in or about the carrying on of any trade or business, shall be binding upon her husband, or render him or his property in any way liable therefor. It will be observed that no reference is made to the' wife’s torts. In view of these enactments, section 7 states when a married woman may be sued in the same manner as if she were sole. It is not declared that she may be sued in matters having relation to her separate business, but in matters having relation to her sole and separate property. It has been already considered that the tort in question did not relate to her property.

The learned counsel for the appellant presents an argument of weight. It is, that if a married woman may acquire separate property by her own action, as if she were sole, it is not intended that there can be legal power of interference by her husband with any steps she may take to acquire that property, and if there be no power of interference there should be no legal responsibility. This seems to be sufficiently answered by considering that the sole liability of married women is such only as the legislature has seen fit to make, and that, as we have seen, is confined to matters that relate to what is in fact the married woman’s sole property.

The effect of a more recent statute, section 450 of the Code of Civil Procedure, remains to be examined, and particularly with reference to the learned opinion in Gerald v. Quam (10 Abb. N. C. 28). The court in that case thought that the last clause of the"section : “ It is not necessary or” proper to join her husband with her as a party in any action or special proceeding affecting her separate property,” did not imply that it was necessary to join him in other cases, because the previous part of the section declared otherwise, and embraced all actions against married women. But to me, it seems that the first part has no regulation for the bringing of actions, or when or as to what a married woman might be sued as if she were single. It only says that when she is sued, whether on a joint or individual claim against her, her husband should not, as by common law he might, appoint an attorney to appear for her and defend, but she appears sui juris, and defends as if she were not married. If this be correct, it has no bearing upon the implication of the second part of the section.

I am of opinion, therefore, that the appellant was responsible to the plaintiffs. If he were liable, there is no question in the case as to his being made defendant jointly with the wife, against whom an individual liability is claimed. She would be the party to raise that question, and she has not done so.

One other matter demands attention. It appeared by plaintiffs’ case, that after the receiving of the goods by the appellant’s wife, the plaintiffs had recovered certain of the goods, and had also received certain moneys from a Mrs. Miller, in payment of a judgment obtained for the conversion by her of the goods involved in this action, the appellant’s wife having sent the goods to Mrs. Miller. The court refused to charge as requested by the appellant’s counsel, that the jury should deduct from the value of the goods converted the sum paid by Mrs. Miller. This request, I think, should have been granted, under the case of Knapp v. Roche (18 Week. Dig. 324). It was not matter of defense, but concerned the plaintiffs’ proof as to what damage they had in fact suffered.

It is not necessary, however, to order a new trial on this ground: The plaintiff’s proof was that he had received from Mrs. Miller a sum of money, which, with what the -court directed should be deducted for other reasons, amounted to a sum which the defendant’s.counsel claimed in his requests was the sum to be deducted, viz.: $5,200. The requests did not .specifically refer to this sum, but they were based upon the evidence as given by the plaintiffs, and there was no doubt as to this sum being all that was received by plaintiffs. The court instructed the jury to deduct a parcel of this amount, to wit, $2,224.76, but the rest, that is, $2,975.24, should have been deducted. This may now be deducted from the verdict, a a that ascertained the value of the goods, without including interest.

The judgment appealed from should be reversed, unless the plaintiff stipulate that from the amount of the verdict $2,975.24 be deducted, and in case of such stipulation the judgment as so reduced is affirmed, without costs of appeal to either party.

Ingraham, J., concurred in the result.  