14 A.2d 593 | Pa. Super. Ct. | 1940
Argued April 23, 1940. Plaintiff, a married woman, brought an action in trespass against defendant to recover damages resulting from injuries sustained when her right foot became entangled in a wire on a pathway maintained by defendant as an approach to its station. The jury returned a verdict in favor of plaintiff in the amount $1,250. She filed a motion for new trial which was refused. Judgment was entered on the verdict, and this appeal followed.
In the court below appellant urged the granting of a new trial on the ground that the trial judge erred in excluding from the proofs expense items paid or contracted to be paid by appellant for medical attention, domestic help, medicines, and other similar items, which appellant had paid or contracted to pay, made necessary because of injuries received as the result of appellee's alleged negligence. The refusal of the trial judge to affirm one of appellant's points for charge was also raised under the motion and reasons for new trial in the court below, and is here assigned as error (fourth assignment of error). This assignment of error is overruled as appellant took no exception at the time of trial to the failure of the trial judge to answer the point submitted. The second and third assignments of error complain of portions of the charge of the court. The second assignment relates to that portion of the charge wherein the trial judge discussed the measure of damages; and the third assignment relates to the portion of the charge dealing with notice and constructive notice. More specific instructions on these subjects were not requested at the time of trial, and appellant took only a general exception to the charge. These matters were not raised under the motion and reasons for new trial, and consequently were not considered by the court below. On the retrial of the case, which *266 is required, both parties will be afforded an opportunity to request such instructions on these subjects as they consider necessary in order to have the legal principles applicable to the facts presented to the jury for their guidance. The second and third assignments of error are also overruled.
The first assignment of error complains of the refusal of the trial judge to admit evidence of expenses incurred by appellant as a result of the injuries which she sustained. The fifth assignment of error is to the refusal of a new trial by the court below. The first and fifth assignments of error will be sustained.
Appellant was injured on November 8, 1935. For many years prior thereto she had conducted a small store, and had been postmistress and mail messenger for the village of Lockport, Westmoreland County. At the time of her injuries she had ceased to operate the store, but was postmistress and mail messenger.
Appellant and her husband were residing together at the time of her injury, and this same relationship existed at the time of the trial on February 14, 1939. Her husband had been badly crippled for 45 years, and was unable to do work of any kind or character. This action was brought without the joinder of appellant's husband.
Testimony was excluded by the trial judge as to payments made and obligations incurred by appellant for medical attention, domestic help, medicines, and other similar items, on the theory that the right to recover for these items of expense was vested in the husband alone.
It is upon King v. Thompson et ux.,
If there has been no substantial change in the law since Kingv. Thompson et ux., supra, then it may be admitted that the case rules the question here involved. That case was an action on the case brought by husband and wife (defendants in error) in the right of the wife to recover damages for alleged injuries to the wife. It was there held that, as suit was brought for the use of the wife, no recovery could be had for any loss the husband may have sustained, and for which he alone could bring suit; that the husband was entitled to the earnings of his wife, and was liable for her support and maintenance; that if, by reason of the accident, the earning power of the wife was diminished, the loss in a legal sense was the loss of the husband; and that if physicians' bills, medicines and expenses of nursing were incurred the husband would be liable for their payment unless the wife had been declared a feme sole trader under the existing acts, or was entitled to claim the immunities of a feme sole trader by reason of the causes enumerated therein. In King v.Thompson et ux., supra, as in the instant case, the husband had been in bad health, and the wife had been obliged to support herself and family. Upon the trial the plaintiff *268
(the wife) was permitted to testify, over the objection of the defendant, as to the length of time she was unable to work as a result of the injury caused by the accident, and the expense to which she was subjected, as to the amount of the physician's bill for medical attendance, and that she had employed the physician herself. The court below admitted this evidence, and the Supreme Court reversed the judgment. At that time, however, the husband and the wife were required to maintain separate actions to redress their respective rights arising from injury to the wife. In 1878, and prior thereto, the capacity of a married woman to contract was exceptional and her disability general, and there was a presumption that her contracts were void. Merchants' andMechanics' Bank of Scranton v. Poore et al.,
By the Act of May 8, 1895, P.L. 54, § 1, 12 Pa.C.S.A. § 1621, the rights of action for personal injuries to a wife "shall be redressed in only one suit brought in the names of the husband and the wife." This section is mandatory; there shall be only one suit. Donoghue v. Consolidated Traction Co.,
We grant, as counsel for appellee contends, that subsequent to the Act of May 8, 1895, P.L. 54, 12 Pa.C.S.A. § 1621 et seq., right of action in each, husband and wife, continued to exist as they respectively had before the passage of the act. Rockwell v.Waverly, Sayre Athens Electric Traction Co., supra. The husband may sue alone for his damages, or the wife may sue alone for hers, but there may not be two separate suits; or they may sue in the names of both, and by two verdicts have the total amount of damages apportioned. But as said in Donoghue v. ConsolidatedTraction Co., supra, at page 183: "There is no natural right in one person to damages for injury to another. At common law the husband had an action for damages for injury to the wife whereby he lost her services, because he had the right to her services, including her earnings. The right arose from the common-law relation of unity of person, the husband as to personal property and services being the person. But marriage is a civil contract involving rights under the control of the law-making power. The legislature may sever the unity of person, and as to property, the right to separate earnings of the wife, and the damages for personal injury to her, it has already done so to a very great extent. It would be but a step farther in the same direction to take away altogether the husband's action for loss of services of the wife."
Following the case of King v. Thompson et ux., supra, the Act of June 11, 1879, P.L. 126 (section 1 repealed by the Act of May 8, 1895, P.L. 54, § 5), was enacted. Prior to that act recovery in the right of the wife was restricted to damages personal to herself, and the right of action for her services, expenses, etc., was exclusively in the husband. Kelley et ux. v. MayberryTownship,
The Act of June 8, 1893, P.L. 344,
Although the primary liability for necessaries for the wife and family remains that of the husband, the wife becomes liable therefor when she specifically contracts in her own name and the credit is given to her, and the presumption that she is acting as her husband's agent is thereby overcome. Strawbridge andClothier, Inc., v. Shecter,
Prior to the Act of 1895 recovery by the wife in her suit for such items as medical expenses, necessary domestic help, and other similar items, would not have been a bar to an action for the same items of damage by the husband. The husband was entitled to recover the moneys he became liable to pay for her medical care and attendance, as well as for the money he had expended.Henry et ux. v. Klopfer,
Since the Act of 1895 the rights of the husband and the wife may be redressed in only one suit, and but one can be brought. If, in a separate action, the wife recovers damages for such items of expense which she paid or agreed to pay, there could be no recovery for the same expenses by the husband even if he were primarily liable.1 It is not appellee, if responsible for *272 appellant's injuries, who could complain of appellant's recovery of such damages, but her husband. But he did not join in the action, and it is too late for him to do so. Appellant paid or rendered herself liable for such expenses, and payment could be enforced against her. Under such circumstances, in her separate action she is now entitled to recover from a negligent defendant necessary expenses resulting from her injuries, which she has paid or for which she has bound herself.
The reason for the rule upon which King v. Thompson et ux., supra, was decided no longer exists. The law has been substantially changed by the Acts of Assembly to which we have herein referred.
Appellant was entitled to show as an element of her damages necessary expenses resulting from her injuries which she paid or contracted to pay. Exclusion of offered proofs of appellant's expenses precluded recovery of damages which she was entitled to have the jury consider, and the court below should have granted appellant's motion for a new trial.
Judgment is reversed, with a venire facias de novo.
In Loughrey v. Pennsylvania Railroad Co.,
