Hawkins v. Front Street Cable Ry. Co.

• Court: Washington Supreme Court
• Writing for the Court: [3 Wash. 593] STILES, J.
• Citation: Hawkins v. Front Street Cable Ry. Co., 3 Wash. 592, 28 P. 1021 (Wash. 1892)
• Decision Date: 21 January 1892
• Parties: HAWKINS ET AL. v. FRONT-STREET CABLE RY. CO.

28 P. 1021

3 Wash. 592

HAWKINS ET AL. v. FRONT-STREET CABLE RY. CO.

Supreme Court of Washington

January 21, 1892

Appeal from superior court, King county; R. OSBORN, Judge.

Action by Marie and George Hawkins against the Front-Street Cable Railway Company. Judgment for plaintiffs. Defendant appeals. Reversed.

SCOTT J., dissenting.

J C. Haines, for appellant.

Ralph Simon and Allen & Powell, for respondents.

STILES, J.

This was an action by husband and wife for damages resulting from injuries inflicted upon the wife through the negligent acts of the appellant's conductor and gripman, while she was a passenger on its street-car. She occupied an outside seat on the "dummy," at the side and near the front. At a certain place the railway track was blocked by a grocer's delivery wagon, the driver of which refused to move out of the way until the dummy came to a stop within a foot or two of the rear end of the wagon. After the gripman had called upon the wagon driver to move on, the conductor told the gripman to move the car up, and hit or push the wagon. The gripman obeyed the direction, and struck the wagon a light blow, when the driver of the wagon whipped up his horse, and drove down the street, still occupying the railway track the dummy following closely after, and perhaps still pushing the wagon. They proceeded thus for about 300 feet, when suddenly the driver turned his horse sharply to one side, for the purpose of entering a cross-street; and the dummy, coming immediately behind, crashed into the rear end of the wagon and upset and broke it. Some portion of the wagon, said to be part of a broken wheel, fell upon Mrs. Hawkins, and injured her. The complaint contained allegations of damage as follows: "Whereby and by reason of which said plaintiff's [Mrs. Hawkins'] body was greatly bruised and injured, causing this plaintiff to suffer great pain of body and anguish of mind, and was by reason thereof confined to her bed under the care of a physician, and prevented from attending to her household duties, as also her business and employment, to-wit, that of bath-tender, for a long space of time, to-wit, ten days, and thus prevented from earning her salary of two dollars per day; and this plaintiff the said George Hawkins, the husband of said Marie Hawkins, was deprived of the society, services, companionship, and solace of his said wife, and was compelled to and did incur large expense and outlay, both of time and money, in attending to and curing his said wife as aforesaid, whereby he was damaged in a large sum, to-wit, one thousand dollars. That at the time, to-wit, the 26th day of May, 1890, when the said defendant corporation, by its carelessness and neglect as aforesaid, caused the injury aforesaid, the plaintiff Marie Hawkins was enceinte, and that the injury to her body as aforesaid, caused by the collision aforesaid, was of such a severe character that it caused the death of the child with which the said plaintiff was then and there enceinte as aforesaid; and that since the filing of the second amended complaint, and the answer thereto herein, to-wit, on October 5, 1890, the plaintiff Marie Hawkins lost the said child, and by reason whereof the said Marie Hawkins suffered great pain in body and distress of mind in giving birth to the said child dead, and in the loss of the said child, and these plaintiffs were compelled to and did expend large sums of money in curing the said Marie Hawkins, and suffered other damages therein." The case was commenced within a few days after the injury occurred, and originally charged no damage accruing later than 10 days from May 26th, but subsequent to October 5th the last paragraph was added as a supplemental complaint.

The first error complained of relates to the husband's alleged damage. The defendant requested the court to charge that the fact that the husband was joined as a plaintiff in the action gave him no right to recover any damages on his own account, for loss or injury sustained by him. This request was refused, and the court charged instead: "If the jury find for the plaintiffs, and if they find that by reason of the injuries of the wife, Marie Hawkins, the husband, George Hawkins, was deprived of the ordinary benefit of his wife's services, then the jury may in computing the damages take into consideration a fair compensation of such loss caused by the wife's injuries." At common law, when a wife was injured through the tort of a third person, the injury and the right of action were hers; but she could not sue unless her husband, if living, joined her as plaintiff. The recovery in that case was the pecuniary measure of her own injury and suffering in body and mind. But there was another element of damage which could be recovered only by her husband suing alone in a separate action, viz., his loss of her services, and his outlay in restoring her to health. In this case the complaint seems to have been based upon the idea that he could also recover for the society, companionship, and solace of his wife, but we do not understand these to be recoverable injuries. As matter of fact, unless death ensues, the husband is not deprived of either, although his enjoyment of them may be lessened by the knowledge of his wife's suffering. They are of those sentimental, intangible injuries which the law cannot measure. Even in case of death, they are not elements of damage. 2 Thomp. Neg. p. 1289; Commissioners v. Legg, 93 Ind. 523. The departure from the common law has, in the most of the states, been in the direction of securing to the wife the right to sue alone for injuries to her, and giving her the fruits of her action as her separate property. In others, as Wisconsin, (Rev. St. § 2680,) husband and wife may recover in the same action for all the injuries to both, in case of a tort committed against her. The instruction requested by the appellant was based upon the common-law rule, and would have been a proper instruction were the common law in this particular in force here. But inasmuch as the right to sue for a tort which one has suffered is a chose in action, and therefore property, in those states where, as here, all property acquired by either spouse, otherwise than by gift, bequest, demise, or descent, is common or community property, this chose in action is suable by that member of the community who has the disposition of the community personalty. So in Texas it is held that the wife is not either a necessary or a proper party to an action for an assault committed upon her. Ezell v. Dodson, 60 Tex. 331; Gallagher v. Bowie, 66 Tex. 265, 17 S.W. 407. And in California the husband is held to be a necessary party, since he has the management and power of disposition of the right to damages as part of the common property. McFadden v. Railway Co., (Cal.) 25 P. 681. Our statutes are substantially the same in this respect as those of Texas and California, and we see no reason why we should not follow the decisions of those states. In this case, therefore, the husband was the only necessary party, though the wife, by section 7, (Code 1881,) is a proper party, and in this action all of the damages naturally flowing from the injury complained of are recoverable. The first element of these to be considered is that directly connected with the person of the wife, the injury, and its subsequent consequences, whether permanent or temporary, and her pain, suffering, wounded feelings, etc.; next, the cost of her nursing, medical attendance, and medicines, which, although they could, at common law, be recovered by the husband alone, are with us presumptively expenses incurred and paid by the community; and, lastly, the loss of the wife's services in the household. Under this ruling it is apparent that the instruction asked by the defendant was properly refused, and that given by the court, as above, was substantially correct.

The second point made by appellant is that the court erred in instructing the jury thus: "It is the law that where a passenger, being carried on a train, is injured without fault of his own, there is legal presumption of negligence, casting upon the carrier the burden of disproving it." Such is not the law as laid down by very numerous authorities. The language of the charge in question was apparently taken from Cooley on Torts, (2d Ed.) p. 796, where it is quoted with approval, as being well said in a Pennsylvania case. There follow several lines in the text however, which qualify the quotation, and make it clearly the law when applied to the cases intended to be...