Handy v. Foley

A husband and wife are jointly liable for a tort done by her in his absence, but under his direction and instigation. Evidence of acts done by a husband in the presence of his wife, similar to those done by her in his absence, in execution of the same purpose, is admissitle to show that the wife &¡ ted under his direction and instigation.

Tobt. The declaration alleged that the defendants did forcibly enter the plaintiff’s close, and wrongfully and forcibly remove, take and carry away, and remove, cut, break up and destroy the plaintiff’s gate, to the injury and damage of the said plaintiff as laid in his writ; and “ that the acts set forth and relied upon were committed by the said Ellen Foley alone, not in the presence of said Dennis Foley, but under his direction, and as his servant and agent, and as his acts as well as her own.” At the trial in the Superior Court, before Allen, J., the defendants contended that an action could not be maintained against the husband' and wife under this declaration; but the judge ruled that the action might be maintained against both. It appeared in evidence, that the trespasses alleged were in the line of a way claimed by the husband, extending from a public highway, over the land of the plaintiff, which lay along the line of the highway, to the husband’s land, lying at the rear of the plaintiff’s land, where was situated the defendants’ dwelling-house ; and, for the purposes of the trial, it was admitted that the husband had a right of way through gates and bars from his land through the plaintiff’s land in the line of the gateway to the public highway. The plaintiff offered evidence tending to show that the wife, in the absence of the husband, but acting, as the plaintiff contended, by the husband’s direction and instigation, removed the gate from its hinges and threw it upon the ground at divers times, and at one time with an axe cat up and destroyed one half of the gate. The plaintiff, for the purpose of showing that the husband encouraged and incited the wife to her acts, offered evidence of the acts of the husband, done in the presence of the wife, in removing the gate from its hinges and throwing it upon the ground. To this the defendants objected, but the judge admitted the evidence. The judge ruled that for the acts of the wife done by herself alone, and without the knowledge and instigation of the husband, the plaintiff could not recover in this action against both defendants ; but for the acts of the wife done in the absence of the husband, with his direction or instigation, the plaint- ff could recover. The jury returned a verdict for the plaintiff; and tin defendants alleged exceptions.