Chicago, B. & Q.R. Co. v. Honey, 393.

• Decision Date: 16 July 1894
• Docket Number: 393.
• Citation: 63 F. 39
• Parties: CHICAGO, B. & Q.R. CO. v. HONEY.
• Court: U.S. Court of Appeals — Eighth Circuit

63 F. 39

CHICAGO, B. & Q.R. CO. v. HONEY.

No. 393.

United States Court of Appeals, Eighth Circuit.

July 16, 1894

John N Baldwin and Smith McPherson (J. W. Blythe on the brief), for plaintiff in error.

Charles M. Harl (J. McCabe and J. M. Jenkin on the brief), for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District judge.

THAYER District Judge.

The question presented by this record and to be decided is accurately stated by counsel for the plaintiff in error, as follows:

'In an action brought by the husband against a third party for damages for the loss of the society of his wife, her aid and surgical attendance, consequent upon physical injuries received by the wife, is the fact that the wife has been guilty of contributory negligence, and the injuries which she received being the result of the concurring negligence of the wife and the third party, a defense?'

The circuit court answered this question in the negative, holding in effect that the contributory fault of the wife could not be imputed to the husband, and preclude him from recovering either on the ground that she was acting as his agent or servant at the time of the injury, or because of the existence of the marital relation. The learned judge of the trial court appears to have been of the opinion that a husband suing for the loss of the services of his wife, and for medical expenses, occasioned by the negligence of a third party, is, in the state of Iowa at least, unaffected by the fact that the wife was guilty of contributory negligence, because the laws of that state have abolished the legal fiction of the identity of husband and wife, and have exempted the husband from responsibility for the negligences and misfeasances of the wife. Vide 59 F. 423. It becomes necessary, therefore, to determine whether this view is tenable. Whenever the question has heretofore b-en considered, it seems to have been taken for granted that the relation existing between husband and wife or parent and child is of such character that the plea of contributory negligence on the part of the wife or child, if the latter is of sufficient age and intelligence to be chargeable with negligence, is a good defense, when the husband or parent brings a common-law action to recover for the loss of service or for medical expenses consequent upon physical injuries sustained by the wife or child through the concurring fault of another. The following are some of the cases, and doubtless there are others, where this principle has been recognized and enforced: Railroad Co. v. Terry, 8 Ohio St. 570; Dietrich v. Railway Co., 58 Md. 347; Benton v. Railway Co., 55 Iowa, 496, 8 N.W. 330; Iron Co. v. Brawley (Ala.) 3 South. 555; Gilligan v. Railroad Co., 1 E.D.Smith, 453. In none of the cases last cited was the reason of the rule stated, nor was the subject much discussed. It seems to have been taken for granted that the concurring negligence of the injured party was a sufficient defense to a suit by the husband or parent, when suing merely for a loss of the services of the injured party, or for medical expenses incurred and paid by him in the discharge of his obligation as husband or parent. But the weight to be given to these decisions as authority is not impaired by the fact that the rule stated and applied was not much discussed. On the contrary, the fact that the doctrine applied to the decision of the cases in question was assumed to be correct both by court and counsel, may be taken as an expression of the general understanding of the profession that the doctrine is well established and founded in reason. If we look for the true foundation of the rule in question, we apprehend that it will not be difficult to find. When one person occupies such a relation to another rational human being that he is legally entitled to her society and services, and to maintain a suit for the deprivation thereof, he should not be permitted to recover in such an action if the loss was occasioned by the concurring negligence of the person on whose account the right of action is given. If the person from whom the right of service and society is derived is capable of taking ordinary precautions to insure her own safety, and the person to whom the right of service belongs suffers her to go abroad unattended, and to exercise her own faculties of self-preservation, it is no more than reasonable to hold him responsible, in a suit for loss of society and service, for the manner in which such faculties have been exercised. We can conceive of no greater reason for deciding, in a case of this character, that a husband is not accountable for the conduct of his wife in caring for the safety of her own person, than there would be for holding that he was not chargeable with her contributory negligence in the management of a horse and carriage belonging to the husband, which she had been permitted to use for her own pleasure and convenience. In either case the fact that the husband has permitted the wife to control her own movements and to provide for her own safety, upon the evident assumption that she is competent to do so, should preclude him from asserting, in a suit against a third party for loss of service or society or for a loss of property, that he is not responsible for her contributory fault whereby the loss was occasioned. In this connection it is worthy of notice that in the state of Iowa, where this case originated, and in some other states as well, it is held that the husband's contributory fault is imputable to the wife in a suit brought by her against a third party and her husband. By the Iowa courts, it is said that the husband's negligence is imputable to the wife under such circumstances, because of the marital relation which entitles her to his care and protection. Yahn v. City of Ottumwa, 60 Iowa, 429, 15 N.W. 257, as explained in Nisbit v. Town of Garner, 75 Iowa, 314, 317, 39 N.W. 516; Peck v. Railroad Co., 50 Conn. 379; Carlisle v. Sheldon, 38 Vt. 440, 447. In other jurisdictions it has been decided that the husband's contributory negligence is not thus imputable to the wife when she sues in her own right for injuries sustained under the circumstances last mentioned.

Shaw v. Craft, 37 F. 317; Sheffield v. Telephone Co., 36 F. 164; Flori v.City of St. Louis, 3 Mo.App. 231, 240; Railway Co. v. Creek (Ind. Sup.) 29 N.E. 481.

We do not regard it as material to the decision of the case at bar to determine what the true doctrine is with reference to the point last mentioned, for even if we should concede it to be the better view that the husband's contributory negligence is not imputable to the wife when she sues in her own right for an injury sustained, still we think that it would not be a reasonable deduction from this rule that the husband is likewise unaffected by the wife's negligence when he sues for...