Jacobson v. Fullerton

• Decision Date: 11 December 1917
• Docket Number: 31524
• Citation: 165 N.W. 358,181 Iowa 1195
• Parties: S. JACOBSON, Appellant, v. DONALD P. FULLERTON et al., Appellees
• Court: Iowa Supreme Court

165 N.W. 358

181 Iowa 1195

S. JACOBSON, Appellant, v. DONALD P. FULLERTON et al., Appellees

No. 31524

Supreme Court of Iowa, Des Moines

December 11, 1917

Appeal from Polk District Court.--LAWRENCE DE GRAFF, Judge.

ACTION for damages. The demurrer of defendants was sustained, and the plaintiff appeals.

Affirmed.

Roy E Cubbage, for appellant.

Sullivan & Sullivan and Nourse & Nourse, for appellees.

PRESTON J. GAYNOR, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

PRESTON, J.

The petition states that plaintiff is the husband of Mrs. S Jacobson, who, in July, 1914, was injured in an automobile collision through the negligence of defendant Donald P. Fullerton, while he was operating the automobile as the agent of defendant Robert Fullerton. It is alleged that her injuries were permanent. It is also alleged that Mrs. Jacobson was crushed, bruised, cut and wrenched; her back was injured; she sustained a deep cut extending from the top of her head down across her forehead to the eyebrow; she suffered a severe nervous shock, leaving her subject to headaches; that she is nervous, unable to sleep, and was confined to her bed a long time; that she is still unable to perform her ordinary household duties, and is confined to her bed a large part of the time; that plaintiff has been compelled to expend large sums of money in securing help to do the work which Mrs. Jacobson had done prior to the injury, and was compelled to expend large sums of money for medicine, physician's care, hospital services and medical services; that plaintiff will be compelled to expend large sums of money in the future on account of said injuries, whereby Mrs. Jacobson was rendered permanently unable to perform her usual work.

The defendant demurred on the ground that, under the statutes of Iowa in force at the time of the alleged injury, the right of action for loss of time, medical attendance, and other expenses resulting from an injury to a married woman, caused by negligence of another, is in the wife, or in the administrator of her estate in case of her death, and not, in any event, in the husband. Section 3477-a, Code Supplemental Supplement, 1915, in so far as it applies to the facts of the instant case, is as follows:

"When any woman receives an injury caused by the negligence or wrongful act of any person, firm or corporation, including a municipal corporation, she may recover for loss of time, medical attendance and other expenses incurred as a result thereof in addition to any elements of damages recoverable by common law."

It is conceded by counsel that this section applies to a married woman. Appellant contends that the court erred in holding that the statute just quoted took away from the husband his common-law right to recover damages sustained by him for loss of his wife's time occasioned by personal injury to her through the negligence of another, and cites Mewhirter v. Hatten, 42 Iowa 288; Omaha & R. V. Ry. Co. v. Chollette, (Neb.) 59 N.W. 921; Birmingham Southern R. Co. v. Lintner, (Ala.) 38 So. 363; Blair v. Bloomington & Normal Ry., E. & H. Co., 130 Ill.App. 400; Riley v. Lidtke, (Neb.) 68 N.W. 356; London v. Cunningham, 20 N.Y.S. 882; Kirkpatrick v. Metropolitan St. Ry. Co., (Mo.) 107 S.W. 1025; Booth v. Manchester St. Ry. Co., (N. H.) 63 A. 578; Baltimore & O. R. Co. v. Glenn, (Ohio) 64 N.E. 438.

Appellant also contends that the court erred in holding that the statute took away from the husband the right to recover moneys expended by him in procuring medical and hospital attendance for his wife following such injuries, citing the cases supra. It is said by appellant, and conceded by appellees, that at common law a husband could recover at law for loss of his wife's services, as well as for medical and surgical attendance. They cite Blackstone, Bacon and Cooley, and the following Iowa cases: McKinney v. Western Stage Co., 4 Iowa 420; Tuttle v. C., R. I. & P. R. Co., 42 Iowa 518.

In the Mewhirter case, supra, it was held, under the statute which provided 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, that this has reference to cases where the wife is employed, to some extent, in performing labor or services for others than her husband, or carrying on some business in her own behalf. Counsel for appellant quote a sentence from the opinion in that case, as follows:

"Certainly, such consequences were not intended by the legislature, and we cannot so hold in the absence of positive and explicit legislation."

And they say that Section 3477-a of the present statute is not such positive and explicit legislation; that that language was used in regard to the discussion in the opinion that, if the construction contended for were to be placed upon the statute, the wife would have a right of action against her husband for domestic service or assistance rendered by her as wife in caring for the children, etc. Appellee contends in this case that the decision in the Mewhirter case did not take from the husband any right of action which he had prior to that act for loss of services, on the theory that there could not be two causes of action for the wife's labor or the loss of her time.

Under our decisions, even under the old statute, the wife could recover for her services when engaged in a separate business, and we think it was the purpose of the legislature, in enacting the last statute, to place all married women on that basis, though not engaged in a separate business, and to place a married woman in the same situation as though she were single, as to the items of damage recoverable under the new statute.

Appellee cites Rose v. City of Fort Dodge, 180 Iowa 331, 155 N.W. 170; Lane v. Steiniger, 174 Iowa 317, 319, 156 N.W. 375; Fisher v. Ellston, 174 Iowa 364, 372, 156 N.W. 422. Appellant concedes that there is language in these decisions which seems to be against his contention, but says that all such is dictum. The argument for appellee is that:

"The language of this statute is clear, and provides that 'any woman' may recover for (a) loss of time; (b) medical attendance; (c) other expenses incurred; (d) any (all) elements of damages recoverable by common law; (e) punitive damages. In case of injury resulting in death, the administrator of the deceased may sue and recover (a) the value of her services as wife; (b) the value of her services as mother; (c) loss of other services; (d) expenses incurred before death (if not previously recovered by her); (e) damages recoverable at common law; (f) punitive damages. The legislature evidently intended to make 'a clean sweep' of the matter; for it expressly provided for the recovery by the wife, or, in case of her death, by her administrator, of all that counsel claims his client (the husband) is entitled to recover in this case. Not only in so many words does the statute provide for the recovery by the wife or her legal personal representative for 'loss of services' and 'medical attendance' and 'all other expenses,' but it provides for the recovery of 'services as wife,' and, that there may be no misunderstanding, ends with this sweeping clause: 'Any (all) elements of damages recoverable at common law.' This statute takes away all common law claims of the husband and completely emancipates the wife."

In the Rose case, supra, a wife brought action for personal injury, including pain and suffering, present and future. No claim was made for loss of time and expenses of treatment. On appeal, the defendant there contended that the verdict of $ 5,000 was excessive, and the court said, at page 339:

"In view of the elimination of all questions of loss of time and earning capacity and expenses of treatment, we think it must be said that the verdict was a very large one. We are not wholly agreed as to whether we would be justified in ordering a...