Booth v. Manchester St. Ry

• Decision Date: 03 April 1906
• Citation: 73 N.H. 529,63 A. 578
• Court: New Hampshire Supreme Court
• Parties: BOOTH v. MANCHESTER ST. RY.

63 A. 578

73 N.H. 529

BOOTH

v. MANCHESTER ST. RY.

Supreme Court of New Hampshire. Hillsborough.

April 3, 1906.

Exceptions from Superior Court, Hillsborough County; Peaslee, Judge.

Action by Marvin R. Booth against the Manchester Street Railway. Defendant's demurrer to the declaration was overruled, subject to exception, and the case was transferred to the Supreme Court. Exception overruled.

Case, for negligently injuring the plaintiff's wife, whereby it is alleged in the declaration he "lost the comfort, assistance, society, and benefit of said Elmina Booth in his domestic affairs, which he might and otherwise would have had, and whereby also the plaintiff was obliged to expend and did expend large sums of money for medicine, medical services, and attendance in his endeavor to heal and cure the said Elmina Booth of her said injuries."

Taggart, Tuttle, Burroughs & Wyman, for plaintiff. Burnham, Brown, Jones & Warren, for defendant.

WALKER, J. The exception must be overruled. It is too plain for argument that the declaration states a cause of action with reference to the money expended by the plaintiff in caring for his wife. But it is contended in behalf of the defendant that no recovery can be had for the loss of the "comfort, assistance, society, and benefit" of his wife "in his domestic affairs," because it is claimed that the various legislative enactments enlarging the rights of the wife have, in effect, deprived the husband of any legal right he may have had at common law to her services; and that having no right thereto, he is not entitled to recover of a third person through whose negligence she has been prevented from performing the ordinary offices of a wife. The right of the husband to maintain such an action at common law is free from doubt. Hopkins v. Railroad, 36 N. H. 9, 72 Am. Dec. 287. And while numerous statutory modifications of the common-law status of married women have been enacted (Harris v. "Webster, 58 N. H. 481), it is not true that all her marital obligations have been superseded and that she has no duties to perform incident to, or growing out of, the marital relation. The statutes "have not taken away the right of either party to the marital contract to have the affection, society, and aid of the other." Ott v. Hentall, 70 N. H. 231, 234, 47 Atl. 80, 81, 51 L. R. A. 226. "Modern legislation enlarging the rights of married women as to contracts and torts has not destroyed the marital status, as defined by the common law." Foote v. Nickerson, 70 N. H. 496, 517, 48 Atl. 1088, 1099, 54 L. R. A. 554. "The obligations, the disabilities, and the privileges inherently consequent upon the marriage union remain unchanged. * * * While unjust disabilities of the wife have been removed, there are implied stipulations of the contract which each party remains justly disabled to violate." Laton v. Balcom, 64 N. H. 92, 95, 96, 6 Atl. 37, 39, 10 Am. St. Rep. 381.

Legislation upon this subject is now embodied in chapter 176, Pub. St. 1901. Section 2 provides that "every married woman shall have the same rights and remedies, and shall be subject to the same liabilities in relation to property held by her in her own right, as if she were unmarried, and may make contracts, and sue and be sued, in all matters in law and equity, and upon any contract by her made, or for any wrong by her done, as if she were unmarried: Provided, however, that the authority hereby given to make contracts shall not affect the laws heretofore in force as to contracts between husband and wife; and provided, also, that no contract or conveyance by a married woman, as...