Jacobson v. Fullerton
| Decision Date | 11 December 1917 |
| Docket Number | No. 31524.,31524. |
| Citation | 165 N.W. 358,181 Iowa 1195 |
| Parties | JACOBSON v. FULLERTON ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Lawrence De Graff, Judge.
Action for damages. The demurrer of defendants was sustained, and the plaintiff appeals. Affirmed.Roy E. Cubbage, of Des Moines, for appellant.
Sullivan & Sullivan and Nourse & Nourse, all of Des Moines, for appellees.
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 operating the automobile as the agent of defendant Robert Fullerton. It was 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 eyebrows; she suffered a severe nervous shock, leaving her subject to headaches; that she is nervous, unable to sleep, and was confined to her bed for 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 defendants 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. The statute in question (section 3477a, Supplemental Supplement), 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, medicinal attendance, and other expenses incurred as a result thereof, in addition to any elements of damage 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, 20 Am. Rep. 618; Omaha Ry. Co. v. Chollette, 41 Neb. 578, 59 N. W. 921;Birmingham Ry. v. Lintner, 141 Ala. 420, 38 South. 363, 109 Am. St. Rep. 40, 3 Ann. Cas. 461;Blair v. Bloomington, 130 Ill. App. 400;Riley v. Lidtke, 49 Neb. 139, 68 N. W. 356;London v. Cunningham, 1 Misc. Rep. 408, 200 N. Y. Supp. 882;Kirkpatrick v. Ry., 129 Mo. App. 524, 107 S. W. 1025;Booth v. Ry., 73 N. H. 529, 63 Atl. 578;Baltimore Ry. Co. v. Glenn, 66 Ohio, 395, 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 appellee, 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. Ry., 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 3477a 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 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. Ft. Dodge, 155 N. W. 173;Lane v. Steiniger, 174 Iowa, 319, 156 N. W. 375;Fisher v. Ellston, 174 Iowa, 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:
In the Rose Case, supra, a wife brought action for personal injury, including pain and suffering, present...
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