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ing that subject is intrusted to the good judgment and common sense of the jurors. Such amount, if any, as you may award for the loss of the wife's services you will fix, and state separately in your verdict.")
The undisputed evidence showed that the plaintiff was a farmer, living upon a farm with his wife and family, at the time of the injury; that plaintiff's wife, before the injury, did the housework, and at times assisted in doing the chores; and that at the time of the injury complained of plaintiff was 52 years of age, and his wife 46.
The jury returned a verdict for the plaintiff, awarding him $100 damages to his property, and $700 for loss of his wife's past and future earnings, and a judgment was entered thereon for the plaintiff in the sum of $800.
The defendant brings the case here for review, and assigns error upon the admission of evidence as to the loss of the wife's services, and the refusal of the court to charge as requested, and upon that part of the charge included in parenthesis.
(1) Was the plaintiff entitled to recover for the loss of his wife's past and future earnings ?
The statute relied upon by defendant is Act No. 196, Public Acts of 1911 (4 How. Stat. [2d Ed.] $ 11552), entitled: "An act defining and regulating the right of married
women to their own earnings." SECTION 1: “Each and every married woman in the State of Michigan shall be absolutely entitled to have, hold, own, retain and enjoy any and all earnings acquired by any such married woman as the result of her personal efforts; and to sell or otherwise dispose of any and all such earnings, and to make contracts in relation thereto to the same extent that any such married woman could have or do if unmarried."
Counsel for defendant have called our attention to the following cases: Jordan v. Railroad Co., 138 Mass. 425; Harmon v. Railroad Co., 165 Mass. 100
(42 N. E. 505, 30 L. R. A. 658, 52 Am. St. Rep. 499).
Some of the provisions of the statute of Massachusetts in force at the time of the above-noted decisions were as follows:
Chapter 147, Public Statutes of Massachusetts:
SECTION 2: “A married woman may make contracts, oral and written, sealed and unsealed, and in the same manner as if she were sole, except that she shall not be authorized hereby to make contracts with her husband.”
SECTION 4: “All work and labor performed by a married woman for a person other than her husband and children shall, unless there is an express agreement on her part to the contrary, be presumed to be performed on her separate account."
SECTION 10: “The contracts made by a married woman in respect to her separate property, trade, business, labor, or services, shall not, except as provided in the following section, be binding on her husband, nor render him or his property liable therefor; but she and her separate property shall be liable on such contracts in the same manner as if she were sole."
Section 11 provides that, when a married woman does business on her separate account, she must file a certain certificate setting forth her name and that of her husband, the nature of the business, and the place where it is proposed to be carried on; provided that, if such certificates are not recorded, the property employed in such business shall be liable to be attached as the property of her husband and be taken in execution against him; and provides liability of the husband upon contracts lawfully made in the prosecution of such business the same as if the contract had been made by himself, in such case.
In Jordan v. Railroad Co., supra, it was held that, in an action by a married woman living with her husband for personal injuries sustained by her, she was entitled to recover for the diminution of her capacity to labor, resulting from the injuries. In that case there was evidence tending to show that the plaintiff was a married woman, living with her husband; and that, besides doing ordinary housework, she took in sewing, the proceeds of which she applied to the support of the family of her husband. The trial court charged the jury as follows:
“If you find that the plaintiff is entitled to recover, she is entitled to recover for the pain she has suffered, both physically and mentally, and for the impairment of her ability to labor. No claim is made for loss of time or expenses of sickness, and in no event can the jury award anything for either; but the plaintiff's capacity to earn is her own, and, if entitled to recover at all, she is entitled to recover for any diminution of her capacity to labor that is shown to have resulted from the injury; and this is to be determined upon the whole evidence, and not by any special theory of computation suggested by counsel."
The jury having returned a verdict for the plaintiff, and defendant having alleged exceptions, the supreme court, in an opinion by Allen, J., held that the instructions given stated clearly the correct rule of damages, and referred to section 4 of the foregoing quoted statute.
In Harmon v. Railroad Co., supra, the same doctrine was asserted, and the same judge said, referring to the legislation of that State:
"The radical nature of the change effected by the legislation of this State in the legal condition of married women is illustrated in numerous decisions, of which Jordan v. Railroad Co., supra, most nearly resembles the present case in its facts."
Counsel for appellee call our attention to the later decision of Kelley v. Railroad Co., 168 Mass. 308 (46 N. E. 1063, 38 L. R. A. 631, 60 Am. St. Rep. 397), where the doctrine is asserted that the common-law right of a husband to a right of action for the loss of consortium through an injury to his wife caused by negligence is not taken away by the Massachusetts
statutes giving married women the control of their time and actions. That was an action brought by the husband to recover damages for the loss of society of his wife and expenses incurred for medical attendance upon her by reason of an injury caused by defendant's negligence. The same judge who rendered the former decisions, referring to the statute and early decisions in Massachusetts, said:
"The unity and identity of interest which by the common law existed between husband and wife have been impaired. Butler v. Ives, 139 Mass. 202 [29 N. E. 654]. They are not, however, entirely done away with. The husband's right to compel his wife to work for him is abridged, but he still has a right to her society and assistance, which is different in character and degree from that which other people have, or which she is at liberty to give to them. By marriage, both husband and wife take upon themselves certain duties and obligations towards each other, in sickness and health, which it cannot be supposed that the legislature has intended wholly to uproot. A married woman may now perform any labor or services on her sole and separate account, as her husband may; nevertheless, each owes certain duties to the other which are not annulled by the statutes. Mewhirter v. Hatten, 42 Iowa, 288 [20 Am. Rep. 618]. These duties are included in the word consortium; but the extent of these duties, or of the right of consortium, need not now be determined.”
In Mewhirter v. Hatten, supra, the question presented for decision was whether a married man was entitled to the personal labor and assistance of his wife to any extent whatever, so as to be entitled to maintain an action against one who, by injuries committed upon her, deprives him of such labor and assistance. The statute of Iowa reads as follows:
“A wife may receive the wages of her personal labor and maintain an action therefor in her own name and hold the same in her own right; and she may prosecute and defend all actions at law and in equity for the preservation and protection of her
rights and property, as if unmarried.” Code 1873, § 2211.
The supreme court of Iowa, in construing this statute, said:
“We think that the terms 'wages of her personal labor,' as here used, refer to cases where the wife is employed to some extent in performing labor or services for others than her husband, or where she is carrying on some business on her own behalf; such, for instance, as dressmaking, or the millinery business or school teaching. In a word, she is entitled to the wages for her personal labor or services performed for others, but her husband is entitled to her labor and assistance in the discharge of those duties and obligations which arise out of the married relation. We feel very clear that the legislature did not intend by this section of the statute to release and discharge the wife from her common-law and scriptural obligation and duty to be a 'helpmeet' to her husband. If such a construction were to be placed upon the statute, then the wife would have a right of action against the husband for any domestic service or assistance rendered by her as wife. For her assistance in the care, nurture, and training of his children, she could bring her action for compensation. She would be under no obligation to superintend or look after any of the affairs of the household unless her husband paid her wages for so doing. Certainly such consequences were not intended by the legislature, and we cannot so hold in the absence of positive and explicit legislation.”
The further language of that opinion is worthy of examination.
A provision of the Kansas statute is as follows:
“Any married woman may carry on any trade or business, and perform any labor or service on her sole and separate account, and the earnings of any married woman, from her trade, business, labor, or service shall be her sole and separate property, and may be used and invested by her in her own name.” Gen. Stat. 1868, chap. 62, § 4.