Choen v. Porter

"Worden, C. J".

Replevin by Choen, against Porter, for some hogs.

The action was commenced before a justice of the peace, and. appealed to the circuit court, where it was tried, resulting in a verdict and judgment for the defendant, a new trial being refused.

On the trial, the court gave to the jury the following, among other, charges, viz.:

“ Ro. 6. In this case, if you find from the evidence, that, at the commencement of this action, the property described in the complaint was in [on ?] the farm of the defendant, but was claimed by his wife and son, and that they had the control and care of said property, and the defendant took no steps in detaining said property, hut merely allowed the same to be kept on his farm by his wife and son, that would not be such a detention of said property, as the law contemplates, to entitle the plaintiff to recover against the defendant in this action.”

This charge was duly excepted to by the appellant, and the giving of it was assigned as one of the reasons for a new trial.

We think the charge means, and must have been so undei’stood by the jury, that the defendant was not liable for the detention of the property, and an action would not lie against him thei'efor, if the detention was caused by his wife and son, and he did nothing more in the way of such detention than to allow his wife and son to keep it on his farm.

This we regard as an incorrect statement of the law. The unlawful detention of the plaintiff’s property was a tort; and if it was thus detained by the defendant’s wife, he became liable to the plaintiff for the act. The husband is liable for the torts and frauds of his wife committed during coverture. Ball v. Bennett, 21 Ind. 427; Cooley Torts, 115. The husband is clearly liable in such case; and, if it be objected that the wife ought to have been joined in the action with her husband, it maybe answered that no question was made in the case as to her non-joinder.

The modern statutes, enlarging the rights of married women in respect to property, do not release the husband from his common-law liability for the personal torts committed by his wife; but he may not be liable for torts committed by her in the management and control of her' separate property. See Rowe v. Smith, 45 N. Y. 230; Baum v. Mullen, 47 N. Y. 577; Kowing v. Manly, 49 N. Y. 192 ; Fiske v. Bailey, 51 N. Y. 150.

But it can not be said that where she. merely claims the property of another, and detains the same, the husband is not liable for the detention.

For tlie error in giving the charge above set out, the judgment will have to be reversed, and we pass over some other questions made by the appellant, as they may not arise upon another trial of the cause.

The appellee has assigned a cross error, upon the following ruling of the court below :

While the cause was pending and before trial, the defendant moved the court to dismiss the action as to him* and to substitute as defendants William R. and Mary Ann Porter, because the defendant filed before the justice who tried the cause his affidavit, stating, in substance, that he never had any interest in or claim to the property in dispute, that one of the two hogs in ■ dispute belonged to Mary Ann Porter, and the other to William R. Porter, who owned the property long before the commencement of the action ; that the defendant never detained the property,, which was in the possession of the persons named at the time the action was commenced ; that the persons"named demand of him the property, which he cannot deliver to them by reason of this suit. ' The affidavit denies all collusion.

The court overruled this motion, and we think very correctly. If the title to the property was in the persons named, that was a good defence to the action, because the plaintiff could not recover without showing title in himself.

The affidavit of the defendant, that the title to the property was in others, and therefore not in the plaintiff, could not be received to settle the question of title against the plaintiff in that summary way, and thereby discharge the defendant from the action. Ror can a defendant in replevin he discharged from the action by disclaiming title to the property, because he is liable for damages and costs if he wrongfully and unlawfully detained it, and for the value of the property unless it is restored to the plaintiff.

The judgment below is reversed, with costs, and the cause remanded for a new trial.

Note. — Biddde, J., was absent when this cause was considered.