Kirkpatrick v. Metropolitan Street Railway Co.
| Decision Date | 17 February 1908 |
| Citation | 107 S.W. 1025,129 Mo.App. 524 |
| Parties | JOHN W. KIRKPATRICK, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.
CERTIFIED TO SUPREME COURT.
Judgment reversed and cause remanded.
John H Lucas, Frank G. Johnson and Ben F. White, for appellant.
(1) The court erred in the admission of all testimony as to the value of the work and wages of the wife of plaintiff, and the loss thereof, as a clerk in the store. The only services for which plaintiff was entitled to recover was the domestic services of his wife. Cullar v. Railroad, 84 Mo.App. 347; Smith v. Railroad, 119 Mo. 246; Macks v Drew, 86 Mo.App. 224; 21 Cyc. 1393.
L. A Laughlin for respondent.
The second point is that the court in admitting evidence that Mrs. Kirkpatrick clerked in her husband's store committed error for the reason that her husband is entitled only to the domestic services of his wife, but not to any other services. None of the authorities cited by appellant bear out any such distinction, so that the claim has all the charm of novelty. On principle it would seem strange that a husband would be entitled to the domestic service of his wife but to no other service she may perform for him. If the wife helps the husband in his business and the husband is not entitled to such service then the wife could recover from the husband the value of the service. But the authorities make no such distinction. Plummer v. Trost, 81 Mo. 429; Plummer v. Milan, 70 Mo.App. 598.
--This is an action brought by a husband to recover damages alleged to have been sustained by him in consequence of personal injuries suffered by his wife as the direct result of the negligence of defendant. Plaintiff had judgment in the sum of $ 2,000, and the cause is here on the appeal of defendant.
It is alleged in the petition "that by reason of said injuries received by his wife he (plaintiff) has been damaged in these particulars: First, in loss of her services in the past as well as in the future; second, in loss of her society and companionship in the past as well as in the future; third, in the value of the services of plaintiff in nursing and caring for her; fourth, in the expense incurred by plaintiff which he has paid or become liable to pay for medical attendance upon his wife to the amount of three hundred dollars; fifth, in the amount paid by plaintiff or for which he has become liable to pay for medicines and nursing for his wife."
The only claim of error made by defendant which appears to possess merit relates to the measure of damages plaintiff was permitted to recover under the instructions given to the jury. The facts disclosed in evidence which are pertinent to this issue thus may be stated: Mrs. Kirkpatrick was injured on the 8th day of January, 1904, by the derailment of a street car operated by defendant in which she was a passenger. The injuries were of a character to disable her permanently and to make her an invalid for life. She was forty-eight years of age and, prior to the injury, had enjoyed excellent health. Her husband conducted a grocery store in Kansas City, Kansas. The family consisted of the husband, wife and a grown daughter and their living rooms were over the grocery store. For some time, Mrs. Kirkpatrick had performed the work of a clerk in the store, in addition to attending to the household duties. It was shown that the reasonable value of her services as clerk was twelve dollars per week, but that she voluntarily contributed these services to her husband's business without compensation. Timely objections were made by defendant to the introduction of evidence relating to this service and its reasonable value, but the learned trial judge overruled the objections and in the instruction given to the jury on the measure of damages included, as an element of plaintiff's damage, compensation for the loss of such service.
This is reversible error. On the finding by the jury that his wife had been injured by the negligence of defendant, plaintiff was entitled, under the allegations of the petition, to recover: First, damages which had resulted and which would be reasonably certain to result in the future from the impairment of her ability to perform domestic services for the family; second, damages resulting to plaintiff from the loss of his wife's society and companionship in the past as well as in the future; third, the reasonable amount which plaintiff paid or became liable to pay for medical attendance, medicine and nursing, including compensation for the time plaintiff himself was compelled to expend in nursing and caring for his wife.
Plaintiff was not entitled to any compensation for the loss of his wife's services as a clerk in his store. Under the statutes now in force for the benefit of married women and the interpretation thereof by the Supreme Court and Courts of Appeals to be found in more recent decisions of those tribunals, the right of compensation for the wrongful injury to a married woman's ability to perform labor beyond that pertaining to the care of the household and family, belongs to the wife and not to the husband. Correlative to the duty of the husband to support the family and provide for the education of the children, the wife owes him her service in caring for the household and in ministering to the needs of the family. Such service, which for convenience may be termed "domestic service" is a marital right of the husband and for any wrongful injury thereto, he may recover adequate compensation from the wrongdoer. Working as a clerk in a store is not domestic service and is labor the wife may refuse to perform without violating any duty to her husband. She no more is bound to perform that kind of service for him, either with or without compensation, than she is to perform it for a third person for his benefit. The fact that plaintiff's wife labored for him in his store without compensation could have no effect on the rights of the parties. When she became a wage-earner, without pay, she gave her husband no right to require her to continue to perform such service. In other words, the donation to him of the fruits of her labor did not deprive her of the right given her by statute to the earnings from her future separate labor. The term "separate labor" as used in the statute should not be construed to refer only to service performed by the wife for a stranger, but to mean labor other than domestic service and for which she would be entitled to demand and receive compensation. These considerations lead to the conclusion that the wrongful deprivation of ability to discharge the duties of a clerk was an injury to her own right, for the redress of which she alone may maintain an action. Authorities in this state fully support this view. [Nelson v. Railroad, 113 Mo.App. 659; Christianson v. McDermott's Estate, 100 S.W. 63; 123 Mo.App. 448; Macks v. Drew, 86 Mo.App. 224; Cullar v. Railway, 84 Mo.App. 347; Clow v. Chapman, 125 Mo. 101, 28 S.W. 328; Dunifer v. Jecko, 87 Mo. 282; Huss v. Culver, 70 Mo.App. 514; Niemeyer v. Niemeyer, 70 Mo.App. 609; R. S. 1899, ch. 51.]
It follows that the judgment must be reversed and the cause remanded. Broaddus, P. J., concurs. Ellison, J., files dissenting opinion. He deems our decision to be contrary to opinion of Supreme Court in Plummer v. Trost, 81 Mo. 425. The case will, therefore, be certified to that court.
DISSENTING OPINION.
ELLISON J.--I am compelled to differ from my colleagues. I think the foregoing opinion, though following Nelson v. Railroad, 113 Mo.App. 659, is a misconstruction of the Married Woman's Statute. Neither this nor the Nelson case is supported by Clow v. Chapman, 125 Mo. 101, 28 S.W. 328, Dunifer v. Jecko, 87 Mo. 282. Those cases do not involve a like question. In the case at bar the husband and wife were living together upstairs over a grocery store which he kept and in which she voluntarily assisted from time to time as a clerk. If there could be a valid agreement between them that she should be paid by the husband, there was none. She voluntarily did the work in assistance to the husband in earning a living for the family.
The statute enacted in aid and relief of married women is not a statute of divorcement. The husband is yet liable for her support and is obliged to protect her. He is "yet regarded as head of the family with power to control the same." [State v. Napper, 141 Mo 401, 42 S.W. 957.] He is responsible for her conduct as at common law. He is yet liable for her slander. [Taylor v. Pullen, 152 Mo. 434, 53 S.W. 1086.] And for her other torts committed during coverture. [Flesh v. Lindsay, 115 Mo. 1, 21 S.W. 907; Nichols v. Nichols, 147 Mo. 387, 407, 48 S.W. 947.] And for the negligence of her servant working on her separate property. [Flesh v. Lindsay, supra.] The Married Woman's Statute (section 4340, Revised Statutes 1899), has cut out the husband's rights to certain of her property, including her separate labor. But it has not interfered with her common law duties and obligations; she must abide with him and live where he chooses (Messenger v. Messenger, 56 Mo. 329; Schuman v. Schuman, 93 Mo.App. 99), and he is entitled to her services, except that "the wages of her separate labor" are "her separate property." But the statute does not force her to regard her labor as separate, nor does it prevent her from aiding her husband. The question is made clearer by keeping in mind that unless the wife's earnings are the product of her "separate labor" they belong to the husband. It is a mistake to suppose that the...
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