City of Wyandotte v. Agan

• Decision Date: 05 November 1887
• Citation: 37 Kan. 528,15 P. 529
• Parties: THE CITY OF WYANDOTTE v. ALICE AGAN
• Court: Kansas Supreme Court

15 P. 529

37 Kan. 528

THE CITY OF WYANDOTTE v. ALICE AGAN

Supreme Court of Kansas

November 5, 1887

Error from Wyandotte District Court.

ACTION to recover damages for bodily injuries. Trial at the July Term,1885, and judgment for the plaintiff, Alice Agan, for $ 1,500, and costs. The defendant City brings the case to this court. The opinion states the facts.

Judgment reversed and cause remanded.

Wm. S Carroll, for plaintiff in error.

J. O Fife, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

On August 20,1884, and while passing along Barnett street, in the city of Wyandotte, Alice Agan sustained injuries from a fall caused by a defective sidewalk. The sidewalk was constructed of boards, some of which were loose and insecure, and as she passed over the walk a passer-by whom she met stepped on one end of a loose board, tipping it up against her, causing her to fall forward and into the opening caused by the displacement of the board. She brought an action against the city, alleging that the injuries resulted from the negligence of the city in constructing and maintaining the sidewalk, and through no fault of her own, and placed her damages at $ 3,000. At the trial she stated that she was a married woman, and at the time of the injury was dependent upon her husband for support. She did not devote her entire time, however, to the domestic duties of the household, as she stated that a part of the time she carried on the business of dressmaking, but that after the injury she had been unable to continue in that business. About six months after the injury occurred, her husband got into trouble and left her, since which time his whereabouts have been unknown to her, and he has contributed nothing toward the support of herself and children. In one of the instructions given, the court directed the jury that if they found for the plaintiff, she would be entitled to recover, not only for the pain and suffering undergone and the permanent injury sustained, but also that they might allow her such "an amount of damages as the jury believed from the evidence will compensate her for the personal injury so received, and for her loss of time in endeavoring to be cured, and her expenses necessarily incurred in respect thereto, if any such loss or expense has been proven." An exception was taken to the giving of this instruction, and it forms the principal ground relied on by the city for a reversal of the judgment which she recovered.

Counsel for the city makes the broad claim that because she was a married woman her time and services belonged alone to her husband, and that a liability for the same could only arise in his favor. The common-law rule that the husband and wife are one person, and that he has the exclusive right to the labor, service and earnings of the wife, has been wisely and radically changed. A positive enactment of our legislature has removed many of the restraints and disabilities of coverture, and it contains a provision that--

"Any married woman may carry on any trade or business, and perform any labor or service on her sole and separate account, and the earnings of any married woman from her trade, business, labor or service shall be her sole and separate property, and may be used and invested by her in her own name."

It also prescribes that she may sue to protect and enforce her rights in the same manner as if she were unmarried. (Gen. Stat. 1868, ch. 62.) It follows from this that the time and services of the wife do not necessarily belong to the husband, nor does an injury which causes the loss of such time...