181 N.Y. 454 | NY | 1905
At the close of plaintiff's case the defendant's motion to dismiss the complaint was granted, on the ground that the plaintiff being a married woman seeks to recover for services to which her husband was entitled, and that any attempted transfer of the cause of action to her by him was without consideration.
For the purposes of this appeal the plaintiff is entitled to the most favorable view of the evidence, and it is, briefly stated, as follows: The plaintiff, a married woman, living with her husband and several children, resided in Saratoga Springs, and occupied, for the greater portion of the time involved in this controversy, the lower story of a house known as No. 17 Cowen street, in the upper part of which resided one Bridget Walsh, the defendant's intestate, who lived alone.
From the first day of May, 1894, until the first day of May, 1900, Mrs. Walsh was in delicate health, subject to occasional illness and requiring much attention. During the period above mentioned Mrs. Walsh employed no servant or nurse and was largely dependent upon the ministrations of the *457 plaintiff. The intestate was an old woman, the owner of some real estate in Saratoga Springs, and had from time to time business transactions with her agents who looked after her property. The plaintiff made her bed, read and wrote for her, took care of her receipts, washed for her and did almost all of her household work, as she herself was unable to do little if anything; that plaintiff much of the time took up meals to her, which she cooked down stairs, this for six years or more prior to the time when plaintiff moved away from Cowen street, May 1st, 1900, but settled in the immediate neighborhood, about two and one-half blocks distant.
The following is a fair history of a day prior to May 1st, 1900: In the morning the plaintiff went up stairs, built the fire, made the bed, helped the intestate to dress, went down stairs and took up her breakfast, swept, read to her, sometimes very late in the evening, took up her dinner for her, looked over her receipts, washed dishes, sat with her in the afternoon, sewed for her, sometimes cooked supper, read to her in the evening, helped her to take off her clothes and go to bed and fixed her stove for the night. Between the first day of May, 1900, and the 12th day of June, 1900, and between the 27th day of June, 1900, and the 16th day of July, 1900, when the intestate died, the plaintiff rendered further and more constant services. The illness of the intestate during this period proved to be her last, as she died on the 16th day of July, 1900. The plaintiff was with the intestate most of the time, including nights, after the first day of May, 1900, except two weeks when she was out of town. These facts were mainly proved by two daughters of the plaintiff, one aged sixteen and the other fourteen years. They are sufficient to show the general character of the services rendered by plaintiff to the intestate. Other witnesses, including the family physician, testified to important details, to which reference need not be made at this time.
The plaintiff testified that her husband said that any amount she might receive for these services should belong to her. The plaintiff and the intestate were not related, and *458 while living under the same roof were independent tenants of different portions of the premises.
It is obvious that the services rendered by the plaintiff were distinct from those duties which she owed to her husband in the marital relation; she was engaged in the prosecution of a separate calling as nurse and attendant under either an express or implied contract precisely as if she had gone out and worked by the day in different houses throughout the town as a seamstress, a laundress, a nurse or any other calling open to women.
It is clear, upon principle and authority, that the dismissal of the complaint on the ground that the plaintiff seeks to recover for services to which her husband was entitled, is legal error. The intestate had incurred no liability to the husband and the latter is vested with no cause of action against her estate. There is no doubt that notwithstanding the enabling statutes conferring valuable personal and property rights upon married women, they have no effect upon those duties which a wife owes to the husband at common law in the marriage relation.
The cases cited by respondent's counsel do not sustain his contention that the complaint was properly dismissed. A few of them will be referred to. Reynolds v. Robinson (
Birkbeck v. Ackroyd (
Coleman v. Burr (
The principle here laid down is applicable to the case at bar. The plaintiff was under no obligation, so far as her husband was concerned, to enter into any contract, express or implied, to serve a person outside of his house and to whom he was under no obligation; she having done so, the statute permits her to collect and retain her earnings in such employment.
Porter v. Dunn (
In the oral argument in the case before us the respondent's *460 counsel urged that no election was shown on the part of the plaintiff to engage in a separate business. We have here the situation where a wife for a period of six years or more was engaged openly in a separate occupation without protest or interference from her husband, the record disclosing that he was entirely willing that she should recover for her services. This is a sufficient election on the part of the wife to embark in an outside undertaking whereby she may earn wages on her own account, no complaint being made that she was in any way neglecting her duties as a wife. It is common experience that wives go out to service in various domestic callings — the washerwoman, the seamstress, the nurse, and other callings, to which reference has already been made. The fact that a married woman enters upon such independent employment is a circumstance showing that she intended to avail herself of the privilege conferred by the enabling statutes.
Brooks v. Schwerin (
In Blaechinska v. Howard Mission and Home (
The counsel for respondent alludes to a recent law (Chap. 289, Laws of 1902), concededly not applicable to the case at bar, having been passed since the services involved therein were rendered, but argues that this statute was evidently passed to overcome the presumption in the husband's favor under the common law. The statute is entitled "An act to amend the Domestic Relations Law in relation to the rights of married women." It amends the Domestic Relations Law by adding to article III the following: "§ 30. A married *462 woman shall have a cause of action in her own sole and separate right for all wages, salary, profits, compensation or other remuneration for which she may render work, labor or services, or which may be derived from any trade, business or occupation carried on by her, and her husband shall have no right of action therefor, unless she, or he, with her knowledge or consent, has otherwise expressly agreed with the person obligated to pay such wages, salary, profits, compensation or other remuneration. In any action or proceeding in which a married woman or her husband shall seek to recover wages, salary, profits, compensation or other remuneration for which such married woman has rendered work, labor, or services, or which was derived from any trade, business or occupation carried on by her, or in which the loss of such wages, salary, profits, compensation or other remuneration shall be an item of damage claimed by a married woman or her husband, the presumption of law in all such cases shall be that such married woman is alone entitled thereto, unless the contrary expressly appears."
We are of opinion that this statute was not passed to overcome any presumption in the husband's favor existing at common law, but is evidently designed to make perfectly clear that principle which is to be found in many of the decisions construing the enabling statutes in the interest of married women and providing a presumption in their favor.
The judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.
HAIGHT, VANN and WERNER, JJ., concur; CULLEN, Ch. J., GRAY and O'BRIEN, JJ., dissent.
Judgment reversed, etc. *463