Kirkpatrick v. Metropolitan Street Railway Co.

JOHNSON, J.

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 Avas entitled, under the allegations of the petition, to recover: First, damages which had resulted and Avhich Avould 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 Avife’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 sendee” 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 Avife labored for him in his store without compensation could have no effect on the rights of the parties. When she became a wage-earner, Avithout 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 Avife 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. McDearmott’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; 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.