Kelley v. Mayberry Township, 154 Pa. 440

154 Pa. 440 | Pa. | 1893

Opinion by

Mr. Chief Justice Sterrett,

Some of the specifications of error relate to the proper measure of damages, in cases such as this, and may be considered-together. Defendant’s contention is that when the stipulation provided for in the act of June 11, 1879, P. L. 129, is filed, the value of the wife’s services must be shown in dollars and cents; and inasmuch as no such evidence was introduced in this case, the personal services of the beneficial plaintiff, as an element of damages, should have been excluded.

We cannot assent to that as a correct proposition. On the contrary, we think that, upon said stipulation being filed, the beneficial plaintiff became entitled to recover, in this action, not only what her husband might have recovered in a suit brought, in his own right, for the loss of such services, including all her services as wife to the household, as well as her earning power in employments outside of strictly domestic duties, together with such damages as she was entitled to recover for direct injury to herself.

Aside from the act of 1879, and in the absence of the stipulation therein provided for, the husband would sue alone for his damages, and the wife for hers. The act in effect provides for vesting in the wife alone separate rights of action, which otherwise would belong to and be enforced by each respectively, thus enabling her in one suit to recover, for her own use and benefit, all the damages which might otherwise be recovered in the separate actions of each respectively. While the husband’s stipulation, filed according to the provisions of the act, effectually bars him from further recovery, it was never intended to operate as a release to the wrongdoer of any part of the damages which he, aside from the provisions of the act, would be entitled to recover. In other words, the elements of damages, intended to be the basis of recovery, under the act, for the benefit of the wife, are those that would otherwise warrant a recovery by the husband, on his own account, together with those for which recovery might be had in right of the wife. Nor was the act intended to change either the kind or quality of the evidence necessary to entitle the husband and the wife, respectively, to recover in separate actions. They remain unchanged, and include such facts and circumstances as tend to show the direct and incidental loss to the husband, and the direct personal injury, etc., to the wife. These have been repeatedly recognized and distinguished in numerous adjudicated cases, among which are, King v. Thompson, 87 Pa. 365; Borough of Nanticoke v. Warne, 106 Pa. 373; Susquehanna Depot v. Simmons, 112 Pa. 384; Henry & Wife v. Klopfer, 147 Pa. 178. In the case last cited, it is said: “ The husband is entitled to recover the moneys he has expended or become liable to pay for the medical care and attendance upon his wife during her illness, and for the loss of her services while unable to attend to her domestic duties.” In Cooley on Torts, 226, the general doctrine on the subject is stated thus: “For an injury to the wife, either intentionally or negligently caused, which deprives her of the ability to perform services, or lessens that ability, the husband may maintain an action for the loss of service, and also for an incidental loss or damage, such as moneys expended in care and, medical treatment and the like.” Speaking of the origin, etc., of the term “ services,” the same learned author says the word as now understood in connection with claims by husbands for damages, etc., “ implies whatever of aid, assistance, comfort and society the wife would be expected to render to, or bestow upon her husband, under the circumstances and in the condition in which they may be placed, whatever those may be. That services in the ordinary sense were not rendered at all, would be immaterial and irrelevant, except as the fact might, under some circumstances, tend to show a want of conjugal regard and affection and thereby mitigate the damages.”

In Jones v. Railway Co., 128 Pa. 308, the testimony was to the effect that plaintiff’s wife, who had been fatally injured by defendant company, was about sixty years of age and had always been a healthy woman. The court refused to charge, as requested, that the evidence failed to show any pecuniary loss to plaintiff by reason of his wife’s death, and hence there was nothing to warrant the jury in finding damages in his favor. In sustaining the action of the court we said: “ Presuming that, in the absence of any rebutting evidence, the jury might and doubtlessly would infer that she was an ordinarily industrious and useful wife, capable of discharging the duties of her position properly, and that consequently her death was a pecuniary loss to him, plaintiff below'did not undertake to prove that she possessed any specially or exceptionally good qualities, as with propriety he might have done if the subject of his loss had been a horse or other animal. Nor was it necessary or proper that he should do so.”

A similar rule is applicable in cases of injury resulting in loss of earning power or impaired ability, whether of a permanent or temporary character. The underlying principle is substan tially the same. In such cases jurors, endowed with at least a modicum of common sense, may be supposed to have some knowledge of the ordinary affairs of life.

Furnish v. Railway Co., 102 Missouri, 669, 22 Am. St. R. 800, is to the same effect. For answer to the objection that no evidence was offered of the value of the wife’s society, etc., the court in that case said, “ the nature of the subject does not admit of direct proof of value, and when the fact of loss of society is established by testimony, the assessment of reasonable compensation therefor must necessarily be committed to the sound discretion and judgment of the triers of fact.”

It is, moreover, contended that the act of 1879 offends against sec. 8, art. Ill, of the constitution. We do not think so. It is entitled, “ An Act relative to actions brought by husband and wife, or by the wife alone, for her separate property, in cases of desertion.” It consists of two sections, the first of which provides that in all actions brought in the name of the husband and wife, for the use of the wife, to recover damages for injuries done to her, evidence may be given to show the value of her services and the expenses incurred in consequence of such injuries ; and recovery may be had therefor to the use of the wife, provided her husband, at time of bringing such action, files the required stipulation. As we have already seen, the purpose of this was to include, in the action thus brought, all those elements of damages that would constitute the basis of recovery in an action brought by the husband alone. Prior to the act, recovery in right of the wife was restricted to damages personal to herself. The right of action for her services, expenses, etc., was exclusively in the husband.

The first clause of the title indicates with sufficient clearness that one branch of the general subject on which it was proposed to legislate was in relation “ to actions by husband and wife,” the details of which legislation constitute the first section. The other branch of the subject is sufficiently indicated by the latter clause of the title, which relates to actions brought “ by the wife alone for her separate property in cases of desertion ; ” and the legislation on that constitutes the second section of the act. Instead of containing more than one subject, the provisions of both sections are cognate, each, respectively, relating not to a separate and independent subject of legislation, but to branches of the same general subject, namely, remedial legislation in the interest and for the benefit of married women.

We are not convinced that there is any error in the learned judge’s answer to either of defendant’s points recited in the sixth, seventh, ninth and tenth specifications respectively, nor to those portions of his charge complained of in the fifth and eighth specifications.

The right of the plaintiff to recover depended mainly on questions of fact, arising upon the evidence. Those questions were fairly submitted to the jury under instructions that appear to be free from error.

Judgment affirmed.