Louisville & N.R. Co. v. Kinman

• Decision Date: 20 December 1918
• Citation: 206 S.W. 880,182 Ky. 597
• Parties: LOUISVILLE & N. R. CO. v. KINMAN.
• Court: Kentucky Court of Appeals

206 S.W. 880

182 Ky. 597

LOUISVILLE & N. R. CO. v. KINMAN.

Court of Appeals of Kentucky.

December 20, 1918

Appeal from Circuit Court, Grant County.

Action by Neat Kinman against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

De Jarnett & Harrison, of Williamstown, and Benjamin D Warfield, of Louisville, for appellant.

W. W Dickerson and O. S. Hogan, both of Williamstown, and Menefee & Menefee, of Crittenden, for appellee.

MILLER J.

Where a married woman has been injured, can her husband maintain an action for the loss of the aid and service of her society she having been compensated for her personal injuries and her physical pain and suffering?

While Neat Kinman and his wife, Nancy, were at appellant's station at Sparta, Ky. awaiting the arrival of a passenger train that would convey them from Sparta to Elliston Station a station truck was hit by a passing train and thrown against Mrs. Kinman, seriously injuring her. The proof tended strongly to show that her injuries were of such a character as to render her wholly unable to perform her ordinary household duties, and that the consortium in its strict sense was destroyed.

Although not relied upon in the pleading, counsel for appellee concedes that the appellant made a settlement with Nancy Kinman, and paid her for her personal injuries and her physical pain and suffering. This, however, cannot affect the case, since the husband's right of action, if it exists, is not to be diminished by a payment to his wife. The husband, Neat Kinman, brought this action for his loss and injury, to wit, the loss of his wife's services in and about his household, of her society, and the loss of the consolation of the marital relationship. Demurrers to the petition, both general and special, having been overruled, a trial resulted in a verdict and judgment in favor of the husband for $1,500. The defendant appeals.

In asking a reversal of that judgment, appellant insists: (1) That since the enactment of the Weissinger Law of 1894 (Ky. St. § 2127) the husband has no property rights growing out of the injury to his wife, for which a right of action lies exclusively in her; (2) that the trial court, following up the error committed when the demurrers to the petition were overruled, admitted much incompetent evidence against defendant; (3) that the damages are excessive; and (4) that the court misinstructed the jury.

The second ground relates to evidence tending to support the husband's cause of action and is dependent upon the first. The damages cannot be said to be excessive, and, indeed, that ground is not seriously argued in the brief. And, since the court instructed the jury that Mrs. Kinman was entitled to all of her earnings and all of her property other than such services as she rendered in the immediate household and the personal consolation to the husband, his right to recover was properly limited, provided he had a right of action. So, it will be seen that the case, in fact, resolves itself into a determination of the question whether a husband may now maintain an action for the loss of consortium and of the services of his wife in his household.

Appellee concedes that at common law the wife had no right of action for the loss of her time, for expenses incurred in treatment, or for physical pain and suffering for injuries caused by negligence; that this was true because the common law regarded the wife as the servant of the husband more than as a companion; and, consequently, that all the losses accrued to him, and none to her. Eden v. Lexington & Frankfort R. R. Co., 14 B. Mon. 204; Louisville & N. R. R. Co. v. McElwain, 98 Ky. 700, 34 S.W. 236, 18 Ky. Law Rep. 379, 34 L. R. A. 788, 56 Am. St. Rep. 385; Rogers v. Fancy Farm Telephone Co., 160 Ky. 841, 170 S.W. 178, L. R. A. 1916D, 186.

Under the common law, the marriage so completely annihilated the wife that her very being and legal existence was suspended during the marriage, or, at least, it was incorporated and consolidated into that of the husband, under whose wing, protection, and cover, she performed everything. 1 Black. Com. 442.

Blackstone further says:

"We may observe that in these relative injuries notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantages accruing therefrom; while the loss of the inferior by such injuries is totally unregarded. One reason for this may be this: That the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she hath no separate interest in anything during her coverture." 3 Com. 143.

In other words, at common law, only the husband had the right to maintain this action.

Appellant contends, however, that the the Kentucky married woman's law, commonly known as the Weissinger Act of 1894 (Ky. St. § 2127), has changed the common-law rule by transferring to the wife the right of action for injuries personal to her and which formerly belonged alone to the husband. Sections 2127 and 2128 of the Kentucky Statutes read as follows:

"2127. Marriage shall give to the husband, during the life of the wife, no estate or interest in the wife's property, real or personal, owned at the time or acquired after the marriage. During the existence of the marriage relation the wife shall hold and own all her estate to her separate and exclusive use, and free from the debts, liabilities or control of her husband.

"2128. * * * She may make contracts and sue and be sued, as a single woman, except that she may not make any executory contract to sell or convey or mortgage her real estate, unless her husband join in such contract," etc.

And a wife could not sue at all for injuries to herself unless her husband joined with her in the action. Civil Code, § 34; Anderson v. Anderson, 11 Bush, 327.

It is insisted that the Weissinger Act, above quoted, has changed this common-law rule as declared in Anderson v. Anderson, supra, and in section 34 of the Code, by giving the wife the right to recover all the damages flowing from an injury to her, and that under the present law, which was in effect at the time the accident occurred, the husband has no more right of action for an injury to his wife than she has for an injury to him. And while it is said, upon the one side, that the question here presented has not been passed upon by this court, it is contended, upon the other, that the court has, in effect, decided it; counsel upon either side relying upon Louisville & N. R. R. Co. v. McElwain, supra. It becomes important, therefore, to ascertain precisely what was decided in that case.

In the McElwain Case, Mrs. McElwain was injured in 1892--more than a year before the enactment of the Weissinger Law--while crossing a railroad track, and died from her injuries. Her husband qualified as the executor of her will, and in that capacity brought an action against the company for damages. At the same time he instituted another...