Southern Ry. Co. v. Crowder

• Decision Date: 18 December 1902
• Citation: 33 So. 335,135 Ala. 417
• Parties: SOUTHERN RY. CO. v. CROWDER.
• Court: Alabama Supreme Court

33 So. 335

135 Ala. 417

SOUTHERN RY. CO. v. CROWDER.

Supreme Court of Alabama

December 18, 1902

Appeal from city court of Birmingham; Chas. A. Senn, Judge.

Action by J. M. Crowder against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

There were four counts in the complaint. The first count was as follows: "The plaintiff claims of the defendant the sum of three thousand dollars, for that on, to wit, the 22d day of July, 1899, the defendant was a common carrier of passengers for hire between the towns of Decatur, Alabama and Huntsville, Ala.; and on said day Mary B. Crowder, who was then, and still is, the wife of plaintiff, was a passenger on defendant's train from said Decatur to Huntsville, and the said defendant negligently failed to safely carry the said Mary B. Crowder as it was its duty to do, but did so negligently and unskillfully conduct itself in that regard that the said Mary B. Crowder, while such passenger, and at or near Madison, a point on said road between said Decatur and said Huntsville, was thrown to the floor, and her hip dislocated," etc. The grounds of demurrer to this count were as follows: "(1) Said count fails to show with sufficient certainty wherein defendant was negligent in failing to safely carry said Mary B. Crowder to her destination. (2) Said count shows on its face that said Mary B. Crowder was at the time of said injuries, and still is, a married woman, the wife of the plaintiff, and as such entitled, under the laws of Alabama, to sue for and recover all damages that may have been sustained for the personal injuries complained of in said count, and that as to the other damages claimed in said count as special damages sustained by the plaintiff as husband, namely, the damage incurred by reason of the expense for medical attention nursing, medicines, and hospital charges, the plaintiff's said wife was and is legally liable for the same, and not the plaintiff, and that as to the item for loss of services of the wife the plaintiff had no legal claim upon his said wife for such services under the laws of Alabama, and that, as to the item of damage arising from the loss of the comfort and companionship of his said wife, the said count shows on its face that said wife is still living with the plaintiff, and as a member of his family, and that the plaintiff has not sustained any loss by reason thereof." These demurrers having been overruled, defendant filed pleas of the general issue and contributory negligence. The evidence showed that the train on which Mrs. Crowder was being carried was an accommodation or mixed train, and consisted of a large number of freight cars, with a caboose attached at the rear, in which passengers were habitually carried. Mrs. Crowder boarded this train at Decatur, holding a first-class ticket for passage to Huntsville. She was given a seat by the conductor upon a chair at the rear end of the caboose, which chair she occupied until the train reached Madison, and there she was thrown by a jar or jerk of the train upon the floor of the car, and her right hip was seriously and permanently injured. The evidence was conflicting as to whether the jar or jerk was of unusual severity, and also upon the issue of contributory negligence. Upon the cross-examination of the conductor, W. A. McMahon, in answer to the question quoted in the opinion, he stated: "I cautioned Mrs. Crowder. Told her to hold on and look out for jars and jerks; could not handle them as nice as on a passenger train. Told her that at the tank at Decatur, when I put her in the chair back there." On the direct examination of J. H. McMahon, a brakeman, he testified in regard to the manner in which the train was stopped at Madison, and as to his putting on brakes to stop the train, and that the train was stopped without any unusual jar or jerk. On cross-examination he was asked, among others, the following questions: "(1) What is the difference in a long train and in a short train, with reference to stopping it? (2) If there is air on two-thirds of the cars, would you have to put up as many brakes, or as soon, as if you had air only on a part of it?" These questions were objected to on the ground that the witness was not an expert, and exceptions to the overruling of the objections were duly reserved. Other facts appear from the opinion. The court, in its general oral charge to the jury stated, among other things: "(1) If it is a known fact that there are bumps and jerks on a freight train, and she assumes all the risks incident to that particular mode of travel, distinctly incident to it, that could not be prevented by the exercise of that high degree of care which the law charges the carrier with, she assumes this. (2) If she did not know of any danger, she would have a right to rely upon the defendant's servant in charge of the car that the place he put her was as safe a spot as he had,--that it was an ordinarily safe place,--if you believe that the conductor did so place her." Defendant separately excepted to said portions of the general charge, as well as to the refusal of each of the following special written charges, viz.: "(5) If the jury believe the evidence, they must find for the defendant." "(9) There can be no recovery by the plaintiff of damages by reason of the alleged loss of his wife's services, resulting from the injury to her. (10) There can be no recovery of damages in this case by reason of the loss by plaintiff of his wife's society or of her companionship. (11) There can be no recovery in this case of damages occasioned to the plaintiff by loss of his wife's aid, assistance, or comfort. (12) There can be no recovery by the plaintiff of damages based on money expended by the plaintiff or liability incurred by him for medical attention, nursing, medicines, or hospital charges in and about endeavoring to cure the plaintiff's wife of her said injuries."

Smith & Weatherly, for appellant.

Nathan L. Miller and Lane & White, for appellee.

DOWDELL J.

This is a suit brought by the husband to recover damages resulting from an injury inflicted upon the wife through the alleged wrong or negligence of the defendant's agents or employés. The damages claimed are for the loss of the wife's services to the husband in their marital and domestic relations, and of her companionship, as well as for expenses incurred by the husband in the medical treatment and nursing of the wife on account of the injuries received. It is not questioned by counsel for appellant but that, apart from any modification of the principles of the common law by our statutes in regard to the rights of the husband growing out of the marriage relation, the husband could sue and recover damages for a wrong done to the wife, occasioning a loss to him of her companionship and services, and for any and all expenses incurred as a proximate result of such wrong. The contention of counsel, however, is that the common-law principles in this respect have been so far modified by our statutes (sections 2520 to 2537 of the Code of 1896, and especially sections 2521 and 2527) that the husband's legal right to the labor, the services, and the earnings of the wife has been taken from him, and that he can no longer maintain a suit of this character for the value of such labor, services, or earnings. So far as we know, or are informed by the briefs of counsel, this is the first time the question now presented for our consideration has ever been before this court. This question, however, has received consideration by the courts of some of the states having statutes similar to ours affecting the rights of married women. The decisions of these courts seem not to be altogether in harmony.

The New York statute relating to married women provided as follows "A married woman may bargain, sell, assign and transfer her separate property and carry on any trade or business, and perform any labor or services on her sole and separate account, and the earnings of any married woman from her trade, business, labor or services, shall be sole and separate property and may be used by her in her own name." Laws 1860, c. 90. The city court of New York, in London v. Cunningham, 20 N.Y.S. 882, construing this statute, said: "The rule now prevailing here as to the measure of her damages as regards loss of her services is that she can recover in her action for the loss of her earning power, over and above her domestic services, which still belong to her husband, but which, of course, are not limited to those of domestic servant, but are such as are usually performed by the wife in the household of her husband, having regard to the surrounding of their home and to their condition in life, and such services would include attendance upon visiting friends as well as boarders in the household; and to all such services the husband is entitled, and in his action can recover for the loss of all such services which would appertain to his or her home, be it in the country, on a farm, in the city, in a palatial residence, or some small apartment in a crowded tenement house." "Of course, the rule under discussion only applies to the wife's services, for the husband can still recover in his...