Stearns, J.
This is an action brought under the statute (Gen. Laws, 1909, Chap. 283, § 14) by Arthur H. Burns and his children, to recover damages for the death of Julia Burns, the wife of Arthur H. Burns and mother of the children, which is alleged to have been caused by the negligence of a servant and agent of the defendants.
After a jury trial, which resulted in a verdict for plaintiffs for $7,000, and a denial by the trial justice of defendants’ motion for a new trial, the case is now in this court on the defendants’ bill of exceptions.
Mrs. Burns, while crossing Thames street in Newport, was struck by an automobile which was driven by one John H. Killian and received injuries, which a few months later resulted in her death. It is admitted that the accident was caused by the negligence of Killian, but defendants" deny that he was their servant and agent.
The defendants Brightman and Chase, whó were partners, had the exclusive privilege of soliciting for the passenger business on Commercial Wharf in Newport. At the time of the accident Killian was driving an automobile which belonged to defendants and for which defendants held a license from the city of Newport to operate as a public vehicle. On the morning of the day of the accident, Killian went to-the garage of defendants and later drove •defendants’ automobile to Commercial Wharf, where, upon the arrival of the steamer from Providence, he took certain passengers into the automobile and then started to drive through Thames street and there ran over Mrs. Burns. Neither Killian nor the other occupants of the car were witnesses at the trial, and it does not appear that any particular effort was made to secure their attendance. Defendants claim that the automobile was rented by Chase to Killian for the day for his own use and that the occupants of the car were his friends. Plaintiffs claim that Killian was the servant of defendants, engaged in carrying on their business and there was evidence of certain 'admissions to that effect made by defendants. The latter deny making any such admissions. This issue was one of fact and the jury found that Killian was the agent of defendants and was acting within the scope of his employment at the time of the accident. The trial justice has approved this finding, and the evidence is sufficient to support the finding.
(1)
Exception is taken by defendants to a part of the charge to the jury in which the trial justice stated in substance that, as defendants had admitted the automobile was theirs, if no other' evidence was produced this was a
prima facie
case which would warrant the jury in drawing the conclusion that the person in charge of the machine was engaged in the employment of defendants, but as the defendants had testified that Killian was not their servant and in their employ, this issue was to be decided upon consideration of all the testimony. The presumption referred to by the trial judge which made a
prima facie
case, meant simply that plaintiffs had introduced sufficient evidence to require defendants to present their case. This having been done, the jury was instructed to decide the issue upon all of the facts in evidence. There is no merit in this exception.
At the conclusion of the testimony defendants requested the court to direct a verdict for defendants on two grounds: 1, that there was no evidence that the driver of the automobile was the servant of defendants; 2, or, if he was their servant, that he was engaged in their business at the time of the accident. Defendants’ exception to the refusal to direct a verdict is overruled. The evidence was conflicting on these issues of fact and the decision of these issues was properly left to the jury.
(2)
On the question of damages the court charged the jury that nothing could be given by way of solace for wounded feelings, or for the bereavement suffered, or for the pain and suffering of the deceased or for the loss of the society of the wife and mother; that the measure of damages was the pecuniary loss sustained, which was the present value of the net result remaining after the personal expenses were deducted from the income or earnings of the deceased; to ascertain this it was necessary to ascertain first, the gross amount of such prospective income or earnings and then to deduct therefrom what the deceased would have expended as a producer to render the services or to acquire the money that she might be expected to produce, computing such
expenses according to her station in life, her means and personal habits, and then to reduce the net result so obtained to its present value. This is a correct statement of the rule as established in
McCabe
v.
Narragansett Electric Lighting Co.,
26 R. I. 427, 27 R. I. 272;
Reynolds
v.
Narragansett Elec. Lighting Co.,
26 R. I. 457;
Dimitri
v.
Cienci & Son,
41 R. I. 392.
To this portion of the charge defendants took an exception as follows: “to that portion of the charge which relates to the damages in which Your Honor charged the jury that the rule was that there should be deducted from the earning capacity the amount it would be necessary to enable the plaintiffs’ intestate to produce that income, on the ground that there was no evidence of what it would cost her to produce that income.” By this exception defendants do not apparently question the basis of the conputation of damages, namely, the earning capacity of deceased. The objection is not stated very clearly, but as exception is also taken to the refusal of the trial justice to grant a new trial on the ground that the verdict was against the law and that the damages are excessive, we think the question is fairly raised as to whether plaintiffs have offered the necessary proof of damages to sustain the verdict.
(3)
The first question is, Does the statute provide for the recovery of damages for the death of a married woman, who at the time of the accident is not engaged in an income producing occupation but whose time and energy are devoted to the maintenance of her household and the care of her husband and children? We answer this in the affirmative. . The claim is that as the deceased was a housewife and was not engaged in any gainful occupation, there was no pecuniary loss caused to her estate by her death; that it is not sufficient to establish the fact that deceased had an earning capacity at the time of her death but there must also be proof of an actual loss of income which deceased was earning at that time; that the services of the deceased, although of value to her husband, were rendered
without expectation of financial return and presumably would continue to be so given until the end of her life and consequently her estate suffered no financial loss by her untimely decease. But why should this presumption be made for the benefit of the wrongdoer? ■ If the husband should die or become-incapable of supporting his wife, the wife would then have to support herself. There is no presumption that the husband will survive his wife.
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Stearns, J.
This is an action brought under the statute (Gen. Laws, 1909, Chap. 283, § 14) by Arthur H. Burns and his children, to recover damages for the death of Julia Burns, the wife of Arthur H. Burns and mother of the children, which is alleged to have been caused by the negligence of a servant and agent of the defendants.
After a jury trial, which resulted in a verdict for plaintiffs for $7,000, and a denial by the trial justice of defendants’ motion for a new trial, the case is now in this court on the defendants’ bill of exceptions.
Mrs. Burns, while crossing Thames street in Newport, was struck by an automobile which was driven by one John H. Killian and received injuries, which a few months later resulted in her death. It is admitted that the accident was caused by the negligence of Killian, but defendants" deny that he was their servant and agent.
The defendants Brightman and Chase, whó were partners, had the exclusive privilege of soliciting for the passenger business on Commercial Wharf in Newport. At the time of the accident Killian was driving an automobile which belonged to defendants and for which defendants held a license from the city of Newport to operate as a public vehicle. On the morning of the day of the accident, Killian went to-the garage of defendants and later drove •defendants’ automobile to Commercial Wharf, where, upon the arrival of the steamer from Providence, he took certain passengers into the automobile and then started to drive through Thames street and there ran over Mrs. Burns. Neither Killian nor the other occupants of the car were witnesses at the trial, and it does not appear that any particular effort was made to secure their attendance. Defendants claim that the automobile was rented by Chase to Killian for the day for his own use and that the occupants of the car were his friends. Plaintiffs claim that Killian was the servant of defendants, engaged in carrying on their business and there was evidence of certain 'admissions to that effect made by defendants. The latter deny making any such admissions. This issue was one of fact and the jury found that Killian was the agent of defendants and was acting within the scope of his employment at the time of the accident. The trial justice has approved this finding, and the evidence is sufficient to support the finding.
(1)
Exception is taken by defendants to a part of the charge to the jury in which the trial justice stated in substance that, as defendants had admitted the automobile was theirs, if no other' evidence was produced this was a
prima facie
case which would warrant the jury in drawing the conclusion that the person in charge of the machine was engaged in the employment of defendants, but as the defendants had testified that Killian was not their servant and in their employ, this issue was to be decided upon consideration of all the testimony. The presumption referred to by the trial judge which made a
prima facie
case, meant simply that plaintiffs had introduced sufficient evidence to require defendants to present their case. This having been done, the jury was instructed to decide the issue upon all of the facts in evidence. There is no merit in this exception.
At the conclusion of the testimony defendants requested the court to direct a verdict for defendants on two grounds: 1, that there was no evidence that the driver of the automobile was the servant of defendants; 2, or, if he was their servant, that he was engaged in their business at the time of the accident. Defendants’ exception to the refusal to direct a verdict is overruled. The evidence was conflicting on these issues of fact and the decision of these issues was properly left to the jury.
(2)
On the question of damages the court charged the jury that nothing could be given by way of solace for wounded feelings, or for the bereavement suffered, or for the pain and suffering of the deceased or for the loss of the society of the wife and mother; that the measure of damages was the pecuniary loss sustained, which was the present value of the net result remaining after the personal expenses were deducted from the income or earnings of the deceased; to ascertain this it was necessary to ascertain first, the gross amount of such prospective income or earnings and then to deduct therefrom what the deceased would have expended as a producer to render the services or to acquire the money that she might be expected to produce, computing such
expenses according to her station in life, her means and personal habits, and then to reduce the net result so obtained to its present value. This is a correct statement of the rule as established in
McCabe
v.
Narragansett Electric Lighting Co.,
26 R. I. 427, 27 R. I. 272;
Reynolds
v.
Narragansett Elec. Lighting Co.,
26 R. I. 457;
Dimitri
v.
Cienci & Son,
41 R. I. 392.
To this portion of the charge defendants took an exception as follows: “to that portion of the charge which relates to the damages in which Your Honor charged the jury that the rule was that there should be deducted from the earning capacity the amount it would be necessary to enable the plaintiffs’ intestate to produce that income, on the ground that there was no evidence of what it would cost her to produce that income.” By this exception defendants do not apparently question the basis of the conputation of damages, namely, the earning capacity of deceased. The objection is not stated very clearly, but as exception is also taken to the refusal of the trial justice to grant a new trial on the ground that the verdict was against the law and that the damages are excessive, we think the question is fairly raised as to whether plaintiffs have offered the necessary proof of damages to sustain the verdict.
(3)
The first question is, Does the statute provide for the recovery of damages for the death of a married woman, who at the time of the accident is not engaged in an income producing occupation but whose time and energy are devoted to the maintenance of her household and the care of her husband and children? We answer this in the affirmative. . The claim is that as the deceased was a housewife and was not engaged in any gainful occupation, there was no pecuniary loss caused to her estate by her death; that it is not sufficient to establish the fact that deceased had an earning capacity at the time of her death but there must also be proof of an actual loss of income which deceased was earning at that time; that the services of the deceased, although of value to her husband, were rendered
without expectation of financial return and presumably would continue to be so given until the end of her life and consequently her estate suffered no financial loss by her untimely decease. But why should this presumption be made for the benefit of the wrongdoer? ■ If the husband should die or become-incapable of supporting his wife, the wife would then have to support herself. There is no presumption that the husband will survive his wife. The mere fact that the person for whose death the action is brought was not at the time of death actually engaged in accumulating property or earning an income does not bar the right of recovery. If this were a bar to the action, the representatives or beneficiaries of a person who had given his services to charities or to the public would have no action. A construction of the act which led to such a result would, to a large extent, defeat the intent of the act. Under the common law the husband is entitled to the services of his wife and in return he is under the obligation to support her. Chapter 246, General Laws, provides that a married woman may carry on any trade or business as .if she were single and unmarried, with the expressed exception that she cannot enter into any trading partnership with her husband. By this, and other statutes, the common law status of husband and wife has been much changed, although the effect of these statutes is not entirely to displace the common law. In
McElroy
v.
Capron,
24 R. I. 561, it was said that the intent of this legislation is to place the- married woman substantially on the same basis as a single woman as far as her legal rights and obligations are concerned. In
Smith
v.
Smith,
20 R. I. 556, it was held that a married woman could maintain an action of trover against her husband for the conversion by him of her household furniture and other personal property. In
Phillips
v.
Phillips,
39 R. I. 92, the right of the wife to enter into a contract with her husband was affirmed.
It thus appears that a married woman now in many-respects is treated in law as if she were single. She is
entitled to the benefit of her own earning capacity whenever she elects to exercise the right. In the absence of any such election her services still belong to her husband and he, not she, is entitled to sue for loss of such services.
Larisa
v.
Tiffany,
42 R. I. 148. As the earning capacity of the wife belongs to her individually and’ is, in a certain sense, her property, defendants should not be permitted to escape liability for the destruction of such property right by reason of the fact that the wife has seen fit for the time being to give her services to her husband and family.
(4)
The action is one created by statute and is based on a new legal right which arises after death. The amount of the damages recovered is not assets of the estate and is not subject to the payment of estate debts or liabilities. Although, as held in
McCabe
v.
Narragansett Electric Lighting Co.,
and other cases cited, the amount of recovery is to be measured on the basis of the loss to the estate and not to the beneficiaries individually, yet the purpose of the act is not solely to enrich the estate of deceased as such, but also to provide for. and distribute to the designated relatives of deceased a legal compensation for the loss caused by the wrongdoer. As the action is statutory, the construction of the statute in regard to details not expressly provided for by the terms of the act, unless a contrary intent appears therein, should be in accord and in harmony with the other laws of the state. The provision that one-half of the damages shall go “to the husband or widow” indicates an intention to establish an equality in the right of action given to the widow or to the surviving husband. At the time of the enactment of the statute, the majority of wives were not engaged in separate pursuits for their own enrichment and we see nothing in the act which requires such restriction of its benefits as is claimed by defendants. It is true that there is of necessity in many cases an unavoidable lack .of certainty in the exact measurement of the damages, but this is not a valid argument for the denial of any recovery at all. The uncertainty in regard to earning
capacity and damages which exists in actions for the death of a minor, for loss to his estate after the time when he or she would have attained majority, is much greater than in the case at bar, but the right to recover for such loss is established.
Dimitri
v.
Cienci & Son, supra.
(5)
Having come to the conclusion that there is a right of action given by the statute, we think the rule of damages is the same in this case as in other cases brought under the statute. As the right of plaintiffs to recover damages is based on the right of the deceased to use her earning capacity for her own benefit, we think for the purpose of fixing the damages the right of recovery upon the death of the wife should be the same as if she were a single woman, and that all of her necessary expenses in acquiring an income should be deducted from the total of her gross income. The present value of the net income is the correct measure of damages. Evidence of standard life tables and tables showing the present value of a dollar for various terms of years was properly admitted. From the testimony it appears that such services as deceased, performed in the household would, according to the prevailing rate of wages, cost from ten to twelve dollars and upwards a week. But there was no evidence' of the expense the deceased would have to incur to produce her income; consequently, there was no sufficient evidence upon which real damages,, as distinguished from nominal damages, could be computed.
There was no reversible error in the trial or in the charge to the jury, but we .think the trial justice erred in his refusal to grant a new trial. Judged by the law as correctly stated to the jury by the trial justice, the plaintiffs failed to produce the proof essential to the legal ascertainment of damages. As the verdict thus lacks the support of the necessary evidence to sustain it, it is contrary to law and should have been set aside by the trial justice. Defendants’ exception on this point is sustained. The other exceptions are overruled.
The case is remitted to the Superior Court for a new trial.