King v. Thompson et Ux.

• Citation: 87 Pa. 365
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 21 October 1878
• Parties: King <I>versus</I> Thompson and Wife.

87 Pa. 365

King versus Thompson and Wife.

Supreme Court of Pennsylvania.

October 10, 1878.

October 21, 1878.

October 10th 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 79 A. M. Brown, for plaintiff in error.—There was not sufficient evidence of the suspension of the marital rights of the husband to relieve the wife of marital disabilities. Mrs. Thompson had no claim to the status of a feme sole.

In refusing his fourth point the defendant was debarred of his defence of contributory negligence: Waters v. Wing, 9 P. F. Smith 211.

George W. Guthrie, for defendants in error.—Mrs. Thompson was entitled to the privileges of a feme sole trader under the provisions of the Act of May 4th 1855, and to enable her to claim them no decree was necessary: Black v. Tricker, 9 P. F. Smith 13. Whether this opening was lawful was a question for the jury. No one can use a public street so as to make it insecure or hazardous: Shearman and Redfield on Negligence, sect. 383; Dillon on Municipal Corporations, sect. 794; Stewart v. Alcorn, 2 W. N. C. 401. A similar nuisance maintained by others does not make this one lawful: Appeal of the City of Philadelphia, 28 P. F. Smith 39.

Mr. Justice PAXSON delivered the opinion of the court, October 21st 1878.

This was an action on the case brought by the defendants in error, John Thompson and Elizabeth, his wife, in right of said Elizabeth, to recover damages for alleged injuries to the wife, caused by her falling into a cellar window opening of a building on Liberty street, Allegheny City. The plaintiff in error, Robert H. King, was the owner of the premises where the accident occurred. There was an opening in the sidewalk at the cellar window of the house, for the purpose of light and ventilation, which was used for taking in coal. This opening was about fifteen inches in width and less than three feet in length, thus projecting into the pavement from the front wall of the house fifteen or sixteen inches. The opening appeared to have been of the usual character for like buildings in the city.

Upon the trial of the case in the court below the plaintiff (Mrs. Thompson) was permitted to testify, against the objection of the defendant, as to the length of time she was unable to work from the injury caused by the accident, and the expense to which she was subjected; also the amount of the physician's bill for medical attendance; that she had employed the physician herself; to be followed by evidence that her husband had been in bad health, and that she had been obliged to support herself and family. The admission of this evidence forms the subject of the first and second specifications of error. The fourth, alleging error in the answer of the court to the plaintiff's fifth point, raises the same question. These three specifications may be considered together.

As this suit was brought for the use of the wife, it is manifest no recovery can be had for any loss the husband may have sustained, and for which he alone could bring suit. It is equally clear that the husband is entitled to the earnings of his wife, and is liable for her support and maintenance. If, by reason of the accident, the earning power of the wife was diminished, the loss, in a legal sense, is the loss of the husband. If physicians' bills, medicines and expenses of nursing were incurred, the husband would be liable for their payment. This is the general rule. The exception is where the wife has been declared a feme sole trader, under the Act of 22d February 1718, 1 Sm. Laws 99; Purd. Dig. 692, pl. 1, or the Act of 4th May 1855, Pamph. L. 430, Purd. Dig. 692, pl. 5, or is entitled to claim the immunities of a feme sole trader under said acts by reason of the causes enumerated therein. There was nothing in the case to bring Mrs. Thompson within the protection of either Act of Assembly. We have nothing but the offer to show that for some time prior to the injury her husband had been in bad health, and that she had been obliged to support herself and family. The evidence in support of the offer was not printed in the paper-book. Assuming the offer to have been fully sustained, it does not come up to the requirements of the Act of 1855. Its language is: "Whensoever any husband, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his wife, or...