Nolte v. Chi., R. I. & P. Ry. Co.

• Decision Date: 12 May 1914
• Docket Number: No. 28,415.,28,415.
• Parties: NOLTE v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

165 Iowa 721

147 N.W. 192

NOLTE

v.CHICAGO, R. I. & P. RY. CO.

No. 28,415.

Supreme Court of Iowa.

May 12, 1914.

Appeal from District Court, Muscatine County; L. J. Horan, Judge.

Action to recover damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. The opinion states the material facts. Affirmed on condition.J. L. Parrish and R. J. Bannister, both of Des Moines, and Carskaddan & Pepper, of Muscatine, for appellant.

Wade, Dutcher & Davis, of Iowa City, for appellee.

WEAVER, J.

The plaintiff's wife, Margaret Nolte, was killed while being carried as a passenger upon the defendant's railway, and this action is brought to recover the damages thus occasioned to her estate. The jury returned a verdict in plaintiff's favor for $9,500, and, from the judgment entered thereon, the defendant has appealed.

I. The defendant does not seriously deny its liability if, as a matter of fact and of law, the estate of the deceased has suffered damages by reason of her death. The substance of the defense urged is that the deceased was a married woman having no separate estate, and engaged in no independent occupation or business, and because of these conditions the recoverable damages, if any at all, are at most merely nominal.

The evidence on the trial tends to show that at the time of her death deceased was still a young woman having an expectancy of life of 39 1/3 years, and had been married only about 11 months. She had been educated as a professional nurse, and had been engaged in that service prior to her marriage. Her services in such profession were worth $25 per week. From the time of her marriage until her death she accepted no employment as a nurse. There is evidence that during at least a part of this time her health was impaired. The evidence bearing upon the question whether she had definitely abandoned professional employment or proposed to take it up again is mostly circumstantial. Plaintiff shows that while engaged therein previous to her marriage she had posted her name and profession among the professional cards upon the bulletin board of a drug store in the town of her residence and left it there during the remainder of her life. She continued to wear the “nurse's pin” or emblem of her profession. She retained possession of her nurse's garb or uniform, saying she would keep it for future use. On one occasion she said she would take such employment but thought her husband would be opposed to it, or wanted first to “know what he would say.” Again, during a period of ill health, she said to a witness that she “would go out nursing any time after she was more able,” or “would go out if she felt strong enough.” On one occasion, speaking to her husband concerning a call which had been made for her services, she said to him she “would like to take the case.” Whether the husband expressed himself on the subject does not appear.

[1][2] The appellant contends that this testimony is both immaterial and incompetent, and assigns error upon its admission. The objection is not well taken. Under the issues raised by the defendant's denials it was competent for the plaintiff to prove if he could his allegations as to the profession of the deceased, and, as bearing upon the further question whether she had definitely abandoned the same as an independent employment, it was proper to prove her intention with respect thereto, and it is a well-established rule that, where “the existence of a particular intention in a certain person at a certain time is a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as his own evidence would be that he had that intention.” Hillmon v. Insurance Co., 145 U. S. 245, 12 Sup. Ct. 909, 36 L. Ed. 706; Mathews v. Railroad Co., 81 Minn. 363, 84 N. W. 101, 83 Am. St. Rep. 383; Brand v. Abbott, 42 Ala. 499; 4 Chamberlayne's Evidence, § 2663 et seq.; 4 Wigmore's Evidence, § 1714.

[3] The theory on which the defense is argued to this court is that the marriage of the deceased and her conduct in refraining from independent employment during the months intervening before her death give rise to the conclusive presumption that she had permanently abandoned her profession, and that her education, training, skill, and earning capacity in such work may not properly be considered in estimating the damages to her estate on account of her death. Prior to the bringing of this action this question, as broadly as here stated, had not been raised in this court. It had been settled, however, that our statutes upon the rights of married women (Code, §§ 3153 to 3164) had so far removed their legal disabilities as to permit them to engage in independent occupations, and to have and control their own earnings with the same freedom and to the same extent as if unmarried, and the death of such a woman occasioned by the negligence of another affords a cause of action against the wrongdoer for the resulting injury to her estate. Niemeyer v. Railroad Co., 143 Iowa, 129, 121 N. W. 522;Fleming v. Shenandoah, 67 Iowa, 505, 25 N. W. 752, 56 Am. Rep. 354.

[4] On the other hand, under the rule prevailing in this state at the time of the death of Mrs. Nolte, March 20, 1910, a married woman was still so far subject to her common-law disabilities that, if she had no independent business or occupation, no action would lie in favor of her administrator for injury to her estate because of her death by the negligence of another person. This was on the theory that as a mere housewife or homekeeper her services belonged to her husband, and it could not be presumed that she would have accumulated any estate had her life not thus been terminated.

[5][6] The question whether a woman's marriage raises a presumption of her abandonment of an independent profession or business in which she has theretofore been engaged, or of an election to give her time and energies for the remainder of her life to duties of a merely domestic nature, remained undecided until very recently. It came up in the Niemeyer Case, supra; but the plaintiff was there able to show as a matter of fact that the interruption of her business by her marriage was temporary only, and with the express purpose of resuming it after a brief wedding trip. In Withey v. Fowler, 145 N. W. 923, decided at the last term of this court, the same question was again involved. There the plaintiff, a married woman, was a music teacher of experience, but for several years prior to her injury had not been actively engaged therein, and it became necessary for us to decide whether the jury could be permitted to take into consideration her skill, experience, and capacity to earn money in her profession in assessing the damages sustained by a permanent injury to her person. After mature deliberation we ruled thereon against the position taken by the appellant in this action. It was there held that, having recognized the right of a married woman to pursue an independent business or profession, it followed by reasonable and logical necessity that the marriage of one so engaged or employed raised no presumption of an abandonment of such employment, and that, even if she ceased such employment for a time after marriage, there was no conclusive presumption that she would not take it up...