Brahan v. Meridian Light & Ry. Co.

83 So. 467, 121 Miss. 269

• Court: Mississippi Supreme Court
• Decided: October 15, 1919
• Docket: No. 20836
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

F. Y. Brahan, the appellant, filed suit in the circuit court against the Meridian Light & Bailway Company for damages to him resulting from a personal injury inflicted upon his wife caused by her falling upon an exposed pipe of the appellee alleged to be negligently put in and maintained at a street in the city of Meridian. The defendant pleaded the general issue and gave notice under the general issue that it would prove that the plaintiff was barred of recovery by the contributory negligence of appellant’s wife. Mrs. Brahan, the wife of the appellant, has heretofore filed suit for personal injuries to herself against the appellee and the city of Meridian and recovered judgment on said suit, which case was affirmed by division A of this court in 78 So. 712. The proof showed that Mrs. Brahan, the wife of appellant, had crossed a street between her residence and that of a neighbor named Pappenheimer on some mission and started to return home and was walking down a terrace or descent between the sidewalk and the main portion of the street, and her foothold slipped and, falling, fell astride the gas pipe connecting the Pappenheimer residence with the gas main of the company, which said gas pipe was exposed and was so placed as to be several inches above the surface of the street level of the intersection of the street proper. The fall caused the fracture of hones, which occasioned Mrs. Brahan being confined in the hospital for some weeks and thereafter, in her home for some three or four months, it being necessary to have her attended by a nurse and treated by a physician, during which time she was unable to perform her household and domestic duties, and during which time it was necessary for Mr. Brahan to expend moneys. He brought this suit for the amount so expended and for damages per quod consortium amisit.

The trial judge excluded the evidence of damage for consortium and limited the plaintiff to the recovery of moneys actually expended, and this action of the trial court is assigned for error by the appellant. The appellee prosecutes a cross-appeal and assigns for error: First, that the court erred in overruling the motion by the cross-appellant at the conclusion of the testimony to exclude the evidence offered by the plaintiff, and direct the jury to return a verdict for the defendant; second, that the court erred in refusing to grant the cross-appellant a peremptory instruction asked by the cross-appellant and refused by the court; third, that the court erred in refusing to grant the cross-appellant the instructions asked by it and refused by the court as found on pages 134, 135, 136, 137, 138, 139, 140, 141, 142, and 1.43 of the record. We will notice the assignment of errors by the appellant first.

The trial court’s ruling in excluding from the jury the right to find dámages for consortium and domestic services was predicated upon the theory that section 2051, Hemingway’s Code, abolishing the disabilities of coverture, destroyed the plaintiff’s right of action for consortium. This section reads as follows:

“Married women are fully emancipated from all disability on account of coverture; and the common law as to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of all property, real and personal, in possession or expectancy, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued, with all the rights and liabilities incident thereto, as if she were not married.”

In Vernor v. Vernor, 62 Miss. 260, which was a suit for alimony, Chief Judge Campbell, speaking for this court, said: “Whatever the origin and foundation of the practice of the courts to make such allowance to the wife, it is not affected by the Code of 1880, which was not designed to supersede or abridge the equitable rights of married women, except as it may expressly provide. ’ ’

It will be noted from the section above quoted that the wife is empowered by the section to acquire and dispose of property, to sue and be sued, and to make contracts, and do all acts in reference to property which she could lawfully do if she were not married, and to bind herself personally as if' she were not married.

It is shown in proof in the case at bay that appellant’s wife was at the time of the injury, and prior thereto, performing household and domestic services for her husband, and that her injury incapacitated her from performing those duties during several months, and plaintiff’s proof tends to show that she was permanently injured.

The appellee relies upon the ease of Marri v. Stamford St. Railroad Co., 84 Conn. 9, 78 Atl. 582, 33 L. R. A. (N. S.), 1042, Ann. Cas. 1912B, 1120, in which the supreme court of Connecticut, in construing the statute of that state similar to the one before us, held that a man cannot recover for the loss of the personal services of his wife, formerly embraced by the term “consortium,” through injuries negligently inflicted upon her by another where the statutes have conferred upon her a legal entity of her own and relieved her of the obligation to perform services which she formerly owed to him. Appellee also relies upon the case of Feneff v. N. Y. C. & H. R. R. Co., 203 Mass. 278, 89 N. E. 436, 24 L. R. A. (N. S. 1042, 133 Am. St. Rep. 291, a Massachusetts case, in which the wife sued for injuries to her husband.

In a note to the case of Marri v. Stamford St. R. R. Co., supra, the editor of this series collects the authorities, and at page 1046, 33 L. R. A. (N. S.), under heading, “Right as Affected by Statute,” says: Blair v. Bloomington & N. R. Electric & Heating Co., 130 Ill. App. 400; Chicago & M. Electric Co. v. Krempel, 116 Ill. App. 253; Kirkpatrick v. Metropolitan Street R. Co., 129 Mo. App. 524, 107 S. W. 1025; Partello v. Missouri P. R. Co., 141 Mo. App. 162, 107 S. W. 473; Booth v. Manchester Street R. Co., 73 N. H. 529, 63 Atl. 578.

“Modern legislation which has so greatly affected the status of married women by recognizing their right to a separate existence, entitling them to . the ownership of their property, giving them ability to contract, power to control their earnings, and endowing them with the capacity to sue and be sued, has not, according to the great weight of authority, although Marri v. Stamford St. R. R. Co., is to the contrary, abridged in any wise the common-law right of a.husband to the companionship, love, and service of his wife which is comprehended by the term ‘consortium,’ and his attendant right to sue therefor in the event of its loss through some personal injury to her” — citing Omaha v. & R. Valley R. Co. v. Chollette, 41 Neb. 578, 59 N. W. 921; Mewhirter v. Hatten, 42 Iowa, 288, 20 Am. Rep., 618; Birmingham Southern R. Co. v. Lintner, 141 Ala. 420, 38 So. 363, 109 Am. St. Rep. 40, 3 Ann. Cas. 461;

In the case of Wyandotte v. Agan, 37 Kan. 528, 15 Pac. 529, it was held that, under the provisions of the act respecting the rights of married women, the earnings of a married woman from her own business, and from her labor or services performed on her sole and separate account, belong exclusively to her, and an injury which prevents her from carrying on her separate business, or disables her from performing such labor or service, accrues to her alone, but that the services rendered by her in the household in discharging the ordinary duties of a wife belong to her husband and the loss of such services occasioned by an injury to her is his loss, and for which he only can recover.

In the case of Brooks v. Schwerin, 54 N. Y. 343, the New York court held that under chapter 90, Laws of 1860, concerning the rights and liabilities of husband and wife, as modified by chapter 172, Laws of 1862, which authorizes a married woman to perform any labor or service on her separate account, and gives her her earnings therefor, and empowers her to bring an action in her own name for injuries to her person, it was held that the services of a wife in her household still belong to her husband, and so far as an injury to her disables her from performing such services the loss is his, and he, not she, can recover therefor.

We think it is clear from the authorities that the husband may recover for such injuries as result in loss to him inflicted upon his wife even where the statutes allow the wife to recover for injuries to herself in her own name, as our statute does. Construing our statutes on husbands and wife as a whole, we are satisfied that the plaintiff was entitled to recover for consortium and that the court below erred in excluding from the jury this element of damages. We do not think the statute was intended to displace the husband as the head of the family, nor affect his rights to tile domestic services which the wife renders, or would render but for her injuries.

We pass now to consideration of the assignment of error on cross-appeal. The cross-appellant contends that the contributory negligence statute (section 502, Hemingway’s Code; chapter 135, Laws of 1910) does not apply to a suit by the husband for an injury to the wife, but only applies in case the wife is suing for her own injuries. Section 502, Hemingway’s Code, reads as follows:

“In all actions hereafter brought for personal injuries or where such injuries have resulted in death, the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured.”

' It will be noted that the language here is very broad using the term “in all actions,” etc., for personal injuries that the contributory negligence shall not bar recovery. We think the term “personal injuries” used in this statute cannot be so limited as to support cross-appellant’s contention but that this word has a well-defined meaning which distinguishes these injuries from injuries to property.

The case of Mulvey v. Boston, 197 Mass. 178, 83 N. E. 402, 14 Ann. Cas. 349, is in point here. The question there involved was where a statute of limitations for personal injuries barred a husband’s right of action for injuries to the person of his wife was embraced in the statute. ’ The court said:

“The injury to the plaintiff’s wife, on which his action is founded, was an injury to her person. The first question to be determined is whether the husband’s action is for an injury to the person within the meaning of the statute. The language of the statute is not restricted to actions for injuries to the person of the plaintiff, and we think it is broad enough to include all actions of tort founded on injuries to the person of any one in such relations to the plaintiff that the injury causes him damage. There is nothing in 'the context to indicate that the words are used in a narrow sense, or that the actions referred to are only those brought by the person receiving the physical impact. The word ‘for’ is used in its ordinary signification of ‘on account of,’ ‘because or by means of,’ or ‘growing out of’ ” — citing Strong v. Sun Mutual Ins. Co., 31 N. Y. 103, 88 Am. Dec. 242; State v. Cornell, 54 Neb. 647, 655, 75 N. W. 25; Maxson v. Delaware, etc., R. Co., 112 N. Y. 559, 20 N. E. 544; Hutcherson v. Durden, 113 Ga. 987, 39 S. E. 495, 54 L. R. A. 811; Bennett v. Bennett, 116 N. Y. 584, 587, 23 N. E. 17, 6 L. R. A. 553; Williams v. Williams, 20 Colo. 51, 37 Pac. 614; Wightman v. Devere, 33 Wis. 570; New v. Southern R. Co., 116 Ga. 147, 42 S. E. 391, 59 L. R. A. 115.

Many of the cases cited in the opinion quoted from are applicable here.

This court in the case of Krebs v. Pascagoula St. Ry. & Power Co., 117 Miss. 771, 78 So. 753, holds the statute not applicable to injuries to property, and we think drew, the distinction between injuries to the person and injuries to property.

The evident purpose of this statute was to impose liability on persons whose negligence caused an injury to a person, even though such person might also be guilty of negligence, for the purpose of compelling a high degree of care so as to protect life and limb, and we see no reason to give the statute an unduly narrow construction. We think the circuit judge ruled correctly on this point.

We do not think it ivas negligence for Mrs. Brahan to cross the street directly in front of her house instead of going to a street crossing and then going down the sidewalk on the other side. The street in question was in the residence section of the city, and there is no ordinance shown in the record requiring a person to cross the street at any particular point.

In 37 Cyc., pp. 13 and 14, it is said: “Ordinarily, however, the term” (highways) “is confined to public ways over land, and it is in this sense that it is employed in this article. Thus used it means a way open to all the people without distinction for passage and repassage at their pleasure.”

At page 266, 37 Cyc., under heading “Bight and Mode of Use — in General, ”»it is said: “A public highway is. open for use by the entire public, or any part thereof, simply for passage, in any reasonable manner, as to drive cattle, or for haulage, but not for sports or diversions. But even one using the highway unlawfully has rights against the.negligence of others.”

In Brooks v. Schwerin, 54 N. Y. 343, it is said: “Foot passengers and those driving in carriages have equal rights in the streets of a city, and both are required to exercise that degree of care and prudence which the circumstances of the case demand.”

It was not negligence per se therefore for Mrs. Brahan to cross the street between street crossings. We think the evidence fails to show contributory negligence by Mrs. Brahan in. the use of the street.

The assignments of error on -cross-appeal in reference to instructions are not argued and, except as they fall within the points decided, not passed upon. The cause wdll therefore be reversed on direct appeal and affirmed on cross-appeal.

Reversed and remanded.