Brahan v. Meridian Light & Ry. Co.

• Decision Date: 10 November 1919
• Docket Number: 20836
• Citation: 83 So. 467,121 Miss. 269
• Parties: BRAHAN v. MERIDIAN LIGHT & RY. CO
• Court: Mississippi Supreme Court

83 So. 467

121 Miss. 269

BRAHAN v. MERIDIAN LIGHT & RY. CO

No. 20836

Supreme Court of Mississippi

November 10, 1919

1. HUSBAND AND WIFE. Husband entitled to recover for loss of consortium of injured wife.

The husband may recover for such injuries as result in loss to him inflicted upon his wife even where the statutes allow the wife to recover for injuries to herself in her own name as our statute does.

2 SAME.

The statute allowing a wife to sue for injuries in her own name was not intended to displace the husband as the head of the family nor affect his domestic rights, to the domestic services which the wife renders or would render but for her injuries, nor prevent him from recovering damages per quod consortium amisit.

3 NEGLIGENCE. Comparative negligence statute applies to action by husband for wife's personal injuries.

Hemingway's Code, section 502, Laws 1910, chapter 135, providing that contributory negligence shall not bar but limit recovery applies to a suit by a husband for injury to his wife; the term "personal injuries" in such statute being used merely to distinguish between injuries to person and injuries to property.

4. MUNICIPAL CORPORATIONS. Not negligence to cross in middle of block.

Where there is no municipal ordinance prohibiting it, it is not negligent to cross a street in the middle of a block in the residence section of a city.

HON. R. W. HEIDELBERG, Judge.

APPEAL from the circuit court of Lauderdale county, HON. R. W. HEIDELBERG, Judge.

Suit by F. V Brahan against the Meridian Light & Railway Company. From a judgment granting only a part of the relief demand, plaintiff appeals, and defendant cross-appeals.

The facts are fully stated in the opinion of the court.

Cause reversed on direct appeal and affirmed on cross-appeal.

Thomas G. Fewell and F. Brahan, for appellant.

Appellant's wife was painfully, seriously and permanently injured by falling upon defendant's Gas Pipe on Twenty-fifth Avenue in the city of Meridian. A former suit brought by Mrs. Brahan was before this court, decision "A," at a former term and was affirmed on direct and cross-appeal. The present suit was brought by the husband for expenses incurred and for damages.

"Per quod consortum amisit." At the conclusion of the evidence the trial court held that appellant could not recover for any damages except the expenses incurred, excluding any and other damages. The jury found a verdict for the appellant in the sum of two hundred and twenty-five dollars on which judgment was entered.

From the judgment and ruling of the court denying appellant the right to recover, other damages, this appeal is taken.

Argument. The only point now involved is whether or not the Mississippi constitution and laws emancipating married women abrogates the common-law right of action given a husband for injury of his wife. The trial court held that his rights were abrogated following the case of Mari v. Stamford Street Ry, Co. (Conn.), 33 L. R. A. (N. S.) 1042.

In presenting this purely legal question I ask the pardon of the court for quoting the note and authorities cited under the above case in extenso.

It strikes me that the note in question so fully answers and repudiates the doctrine of the Connecticut case of Mari v. Stamford upon which the learned trial court based its decision until nothing more may be said except perhaps to cite the later authorities.

It will be noted that this case followed the decision of Feneff v. New York, etc., Co., 24 L. R. A. (N. S.) 1024, a Massachusetts case, in which the wife sued for injuries to her husband, and that is practically the only decision upon which the case of Mari v. Stamford St. Ry., is based.

The Connecticut case stands with Massachusetts and Michigan with the great weight of authority to the contrary of their holdings. It is not disputed in the case at bar and it could not be a point of dispute, but that at common law the rights of action in the husband for injury to his wife is clear.

There, therefore, remains this only point. Does Mississippi, by its constitution provision and statute, abrogate or destroy the common-law rule?

"Right as affected by statute." Modern legislation which has so greatly affected the status of married women by recognizing their right to a separate existence, entitling them to the ownership of their property, giving them ability to contract, power to control their earnings, and endowing them with the capacity to sue or be sued has not according to the great weight of authority, although Mari v. Stamford St. R. Co., is to the contrary, abridged in anywise the common-law right of a husband to the companionship, love, and service of his wife which is comprehended by the term "consortium" and its attendant right to sue therefor in the event of its loss through some personal injury to her.

Indeed it has been said the positive and explicit legislation is necessary in order to deprive the husband of his right to sue for the loss of the society of his wife. Omaha & R. Valley R. Co. v. Chollette, 41 Neb. 578, 59 N.W. 921; Mewhirter v. Hatten, 42 Iowa 288, 20 Am. Rep. 618.

In Omaha & R. Valley R. Co. v. Chollette, supra, where the husband brought an action to recover for the loss, among other items, of his wife's society, etc., through a personal injury to her, the trial judge restricted the jury to a consideration of the extent to which her injuries had incapacitated her from "performing" all the duties of a wife that reasonably devolved upon her in the marriage relation" and it was held that to this extent the husband could recover, notwithstanding the Married Women's Act.

As said in Mewhirter v. Hatten, supra, on a precisely similar question; "We feel very clear that the legislature did not intend by this section of the statute to release and discharge the wife from her common-law and scriptural obligation and duty to be a "help-meet" to her husband. If such a constitution were to be placed upon the statute, then the wife would have a right of action against the husband for any domestic services or assistance rendered by her as wife. For her assistance in the care, nurture, and training of his children, she could bring her action for compensation. She would be under no obligation to superintend or look after any of the affairs of the household unless her husband paid her wages for so doing. Certainly, such consequences were not intended by the legislature, and we cannot so hold in the absence of positive and explicit legislation."

Likewise, in Birmingham Southern R. Co. v. Linteer, 141 Ala. 420, 109 Am. St. Rep. 40, 38 So. 363, 3 A. & E. Ann. Cas, 461, where the statute provided "that the earnings of the wife are her separate property but she is not entitled to compensation for services rendered to or for the husband, or to or for the family," it was said: "While the scope or purpose of this enactment manifestly is to vest in the wife her earnings in services rendered to third persons, strangers to the household. It in no degree emancipates her from her household duties, nor authorizes her to enter upon such alien services as would conflict with and prevent the performance of her duties incident to the domestic establishment, the care, comfort and convenience of the family; the duties in short, which, before the statute, she owed to the husband as the husband and head of the family. These duties she owes now just as she did at the common law; and while the husband may allow her to pretermit them and engage wholly or to any less extent in outside services, the earnings of which belong to her, without such emancipation by the husband, she owes these services to him now as before, and for any wrongful act of a stranger which deprives him of them, he is entitled to recover for the consequent loss and injury."

Thus it has been specially held that the husband's right at common law to recover for loss of his right to the society of his wife is not affected by statutory provisions to the effect that a married man may receive, use, and possess her earnings and sue for the same in her own name, free from the interference of her husband or her creditors. Blair v. Bloomington & N. R. Electric & Heating Co., 100 Ill.App. 400; Chicago & M. Electric R. Co. v. Keempel, 116 Ill App. 253.

That "the earnings of the wife are her own separate property; but she is not entitled to compensation for services rendered to or for her husband, or to or for the family." Birmingham Southern R. Co. v. Crowder, 135 Ala. 417, 33 So. 335.

That the earnings of any married woman from her trade, business, labor, or services shall be here sole and separate property, and may be used and invested by her in her own name." Omaha & R. Valley R. Co. v. Chelete, 41 F. 578, 59 N.W. 921; Riley v. Lidtke, 49 Neb 139, 69 N.W. 356; London v. Cunningham, 1 Misc. 408, 20 N.Y.S. 882.

That the "wife may receive the wages of her personal labor, and maintain an action therefor in her own name, and hold the same in her own right." Mewhirter v. Hatten, 42 Iowa 388, 20 Am. Rep. 618; McKinney v. Western State Co., 4 Iowa 420.

That the wife is given the right to her earnings from future "separate labor." Kirpatrick v. Metropolitan Street R. Co., 129 Mo.App. 524, 107 S.W. 1025; Partello v. Missouri, P. R. Co., 141 Mo.App. 162, S.W. 473.

That "every married woman shall have the same right 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. Booth v. Manchester Street R. Co., 73 N.H. 529,

That "neither husband nor wife has any interest in...