Opinion
(December Term, 1860.)
In an action against a ferryman for negligently carrying plaintiff's wife across his ferry, whereby she was injured, it is not necessary that the wife should be made a party plaintiff.
CASE, tried before French, J., at last Fall Term of RICHMOND. (33)
The declaration was in case for negligence in the defendant's ferryman, whereby plaintiff's wife and child were thrown into the Cape Fear river from the defendant's boat and injured.
The court intimating an opinion that the action could not be sustained without making the wife a party plaintiff, the plaintiff submitted a nonsuit and appealed.
No counsel for plaintiff.
Strange for defendant.
If one slanders a married woman or commits an assault and battery upon her, the action for injuring her must be in the name of husband and wife, although, in the latter instance, if there be any damage besides the pain suffered by the wife, as a loss of service, or an injury to clothes, or medical bills, the husband may sue alone and allege special damage.
So, if one drive his carriage so negligently as to run against a married woman, in an action for the personal injury to her she is a necessary party, and the husband cannot sue alone without alleging special damage.
From the argument made in this Court, we suppose his Honor intimated the opinion that the wife was a necessary party in this action, upon the idea that it fell within the principle stated above, and did not have his attention directed to the fact that the ground of the action was not a simple tort, or personal injury to the wife and child of the plaintiff, but originated in contract. The plaintiff, either in person, or by his wife, as an agent, made an agreement with the defendant by which he undertook to carry the wife and child of the plaintiff across the river with ordinary care. It is assumed by the case that the defendant was guilty of negligence, by reason of which the wife and child were thrown into the river. This was a breach of the agreement, whereby an action accrued to the plaintiff, and, as a matter of course, he was entitled to recover damages to some amount.
The writ is "trespass on the case," and it does not appear by (34) the record whether the plaintiff declared in contract or in tort, He had his election to declare in either form of action. If the declaration was on contract, of course the wife was not a necessary party; and it is equally clear if the declaration was in tort, the wife was not a necessary party. There was no more reason for making her a party plaintiff than for making a child a plaintiff in order to enable the husband and father to recover the damages which he had sustained by reason of the wrongful breach of the contract on the part of the defendant.
If the defendant had undertaken to carry a horse of the plaintiff's across the river, and it was drowned through negligence, all the authorities show that the plaintiff might have sued either in contract or in tort for breach of the contract of bailment; and the same doctrine applies to a contract to carry persons, which is in the nature of a contract of bailment.
A distinction between a case of the kind before us and those which we presume his Honor had in view is this: The one is a simple tort, without any connection whatever with a contract, and the other, although sued for as a tort, arises ex contractu and, being based on contract, the rules in regard to the nonjoinder and misjoinder of parties in actions ex contractu are applied to it; for instance, if two purchase a horse jointly, and one of them sue alone in deceit, the nonjoinder of the other may be taken advantage of by demurrer, motion in arrest of judgment, or writ of error, if the matter appears in the record; if it does not so appear, then by nonsuit, because of the variance, which is the rule for the nonjoinder of parties plaintiff in actions ex contractu; whereas, according to the rule in actions ex delicto, the nonjoinder could only be taken advantage of by plea in abatement, and in the absence of such plea the plaintiff recovers his aliquot part of the damages. This is settled. Scott v. Brown, 48 N.C. 541. On the same principle it is settled, if one hires a horse to an infant and the horse is injured by neglect or by being driven too hard, the action may be (35) either in contract or in tort, but the party, by bringing an action in tort, cannot avoid the plea of infancy, which is a bar to an action on the contract, for the tort arises out of a contract and the rule in respect to actions ex contractu is applied.
The distinction between actions for simple torts and torts arising ex contractu, or "quasi ex contractu" as they are styled in the books, is so clear and the reason for making a difference is so obvious, when attention is called to it, that it seems unnecessary to elaborate the subject.
PER CURIAM. Reversed.
Cited: Moore v. Horne, 153 N.C. 415.