The opinion of the court was delivered by
Rowell, J.The only question made in argument is, whether exemplary damages are recoverable against husband and wife in an action against them for the malicious trespass of the wife, the husband being free from improper motive or other blame in the premises.
When two persons have so conducted themselves as to be jointly liable for a tort, each is responsible for the injury *560committed by their common act. But when motive may be taken into consideration, the improper motive of one cannot be made the ground of aggravating the damages against the other if he is free from such motive. In such case the plaintiff must elect against which party he will seek aggravated damages. Clark v. Newsam, 1 Exch. 131.
So a master, sued for the trespass of his servant, is not liable for 'exemplary damages, however evil the motive of the servant, if he is himself without malice. The Amiable Nancy, 3 Wheat. 546; Cleghorn v. The N. Y. Central & Hudson River R. R. Co. 56 N. Y. 44.
In all these cases it is to be observed that the plaintiff has his election to proceed against all or any of the wrong-doers; and as in such case it would be unjust to make the malicious motive of one party the ground of enhancing damages against another who is free from such motive, if the plaintiff proceeds against all, he thereby deprives himself' of the right he otherwise would have had to claim exemplary damages.
But the case is different when suit is brought for a tort of the wife for which the husband is liable solely by reason of her coverture, for then the plaintiff has no election, but must proceed against both; and herein lies the distinction between this case and the cases relied upon by the defendant; for the husband is liable, not as master, but as husband, and because of the oneness of the twain in the eye of the law. We have not been referred to, nor have we found, much authority for this distinction, but we think it exists on principle.
Judgment affirmed.