97 F. 837 | 8th Cir. | 1899
Lead Opinion
after stating the ease as above, delivered the opinion of the court.
At the commencement of the trial in the lower court, the defendant company asked that court to require the plaintiff’s husband to be made a party plaintiff, assigning as a reason for such motion that, if the plaintiff could recover for the injuries complained of, then her husband could also recover, and that it was desirable that he should he joined, to the end that all claims might be settled in one suit. The motion was denied, and an exception was saved. We perceive no merit whatever in this exception, as the suit was by the wife to recover for certain personal injuries which she had sustained, and as the laws of Arkansas, where the suit was brought, expressly provide (Sand. & H. Dig. Ark. § 5641) that a married woman “may maintain an action in her own name * * * for any injury to her person, character, or property.” This statute is applicable to suits commenced in the federal courts as well as to suits brought in the courts of the state.
When the case was called for trial, the defendant company, in addition to the above motion, also applied for a continuance; but as the plaintiff’s attorney took advantage of the provisions of the Arkansas statute (Sand. & H. Dig. Ark. § 5797), and admitted that the absent witness, if present, would testify to the facts stated in the defendant’s application for a continuance, the motion was overruled. There was no error in such action. The trial court properly exercised its discretionary power. Besides, error cannot be assigned on appeal or writ of error on account of such discretionary action by the trial judge, as this court and other federal courts have repeatedly decided. Davis v. Patrick, 12 U. S. App. 629, 635, 6 C. C. A. 632, 57 Fed 909; Manufacturing Co. v. Hess (C. C. A.) 98 Fed. 56.
Complaint is next made of the refusal of the trial court to give two instructions which were asked by the defendant. These instructions were as follows:
•‘(1) In tills case the plaintiff cannot recover, because' the evidence show» that the acts of some malicious boys, for whose arts defendant is not liable, caused the plaintiff to sit in a seat that had not been prepared for her, nor for other passengers, and thereby to receive the injuries she did.”
“(5) K you believe the seat in question was out, of order by reason of the perforated bottom being out or hanging down, and that its condition was apparent to any person about to sit down on it, and you further believe that some boys, not in the employ of defendant, and without defendant’s knowledge or consent, went, a short time before the accident, and fixed the perforated bottom into the frame of the seat so that it would appear to be in good condition, and this was done for the purpose of deceiving persons and making them believe the seat was in good eoiulirion, and the plaintiff ivas deceived by its then appearance, and induced to sit in the seat by reason of being tiras deceived, then the defendant would not be liable.”
The first of those instructions was properly denied, because it assumed that an act committed by some mischievous boys was the proximate cause of the injury, without submitting that issue to ike arbitrament of the jury. The only evidence contained in the record which tended to afford a basis for the foregoing instructions was the testimony of one witness to the effect that the chair in question had been out of repair for some time, and that certain small boys on some previous occasions had fixed the seat so as to make it appear all right, and then induced their unwary playmates to sit down in it and receive a fall. There was no evidence, so far as we are able to discover, which would have warranted the court in instructing' the jury as a matter of law, as it was asked to do in the first of the above instructions, that the fall of which the plaintiff complained was induced by the malicious act of a stranger, rather than by the neglect of ¡lie defendant company. There was abundant evidence to the effect that the chair had been out of repair in the waiting room for a long time; that it was in such a condition as to prove a trap for the unwary; and that the station master had been notified of its condition, and had
The other instruction was also erroneous, in that it assumed that there was some evidence before the jury tending to show that the bottom of the chair was out or hanging down, and that the defect therein was obvious to every one when the plaintiff attempted to sit down. We find no evidence to that effect, but, on the contrary, we do find testimony which tended to show that it appeared to be in a suitable condition at the time of the accident. Besides, the instruction utterly ignored an obligation which rested on the defendant company either to remove the chair from its waiting room or cause it to be repaired when it had notice of the defect therein and the tricks which hoys were in the habit of playing on each other. It was the province of the jury to decide whether the defendant was not guilty of some negligence, directly contributing to the injury which the plaintiff sustained, in permitting the chair to remain for a long time in its waiting room with knowledge of its condition and the use that was being made of it by boys to deceive unsuspecting persons. In view of the testimony in the case and the form of the instruction, if was clearly erroneous and properly refused.
The next and most important question in the case is whether the trial court erred in instructing the jury that, if the finding was for the plaintiff, they might, in assessing the plaintiff’s damages, “take into consideration her age and earning capacity before and after the injury was received, as shown by the proofs.” This direction is said to have been wrong, because the plaintiff was thereby allowed to recover for a loss of her earning capacity, which was an injury, as it is claimed, on account of which the husband alone is entitled to demand compensation. It is further said that the husband was especially entitled to recover for the loss of the wife’s earning capacity in the case at bar, because he had taken up his abode in the state of Louisiana shortly prior to the accident, under whose laws a claim for damages for an injury to the wife is community property, which must be sued for by the husband and the wife. The plaintiff in the case at bar, as the evidence shows, had resided in the state of Arkansas, where she was hurt, for more than 10 years prior to the injury, but she was on her way to Shreveport, La., to join her husband, when the injury was sustained. Now, assuming it to be true, although the fact was not pleaded, that the plaintiff’s husband had taken up his abode in the state of Louisiana shortly before the accident, and that the laws of that state make the damages claimed community property, and entitle the husband to join in a suit for their recovery in that state, the inquiry arises whether by virtue of these facts the plaintiff’s rights, when she sued in the state of Arkansas for an injury there sustained, .differed in any respect from those of a married woman domiciled in that state. We think that this question should be answered in the negative. The laws of Louisiana cannot be allowed to have any extraterritorial effect in a case of this character. It was competent for the legislature of the state of
It results from what lias been said that the substantial question in the case is whether, under the laws of Arkansas, a married woman, when suing for a personal injury there sustained, is entitled to .recover as a part of her damages for a loss of earning capacity incident to the injury. The statutes of that state provide, as heretofore shown, that she may- maintain a suit in heir own name for an injury to her person, character, or property. They further provide, in substance (Sand. & H. Dig. Ark. §§ 4949, 4945), that both the personal and real property of the wife, acquired either before or after her marriage, shall be and remain her separate estate and property, and. may bo disposed of as if she were a feme sole. They also declare that property of all kinds which comes to a married woman by gift, bequest, or descent, and that which she acquires by her trade, business, labor, or services carried on or performed on her sole or separate account, and the rents, issues, and proceeds of all such property, shall remain her own, and may be used, invested, and disposed of by her as she deems best, free from the control of her husband 'and without liability for his debts. Herein is found a clear authority, by in
Dissenting Opinion
(dissenting). The question presented in this case has been the subject of much discussion and of conflicting decisions, but, under the statutes of Arkansas, the logical result seems to me to be that the husband may, and the wife cannot, recover for the loss of the wife’s services, or for her diminished capacity to labor, which is the same thing. The husband is still the bead of the family in Arkansas. He is liable for the support of the family, and lawfully entitled to services from his wife in that regard, and he necessarily loses through the impairment of her capacity to labor. The authorities cited in the majority opinion seem to rest on a supposed distinction between loss of service and diminution of the capacity to labor, and to hold that the husband may recover for the former and the wife for the latter (Hamilton v. Railway Co., 17 Mont. 334, 42 Pac. 860, and 43 Pac. 713; Harmon v. Railroad Co. [Mass.] 42 N. E. 505; Jordan v. Railroad Co., 138 Mass. 425), but there is and can be no practical distinction between them. The loss of service is the measure of the impairment of capacity and the proof of it, and to permit the husband to recover for the loss of service, and the wife for impairment of capacity to render it, is to allow two recoveries for the same damages. We have already held that, under the Arkansas statutes, the husband may recover for the destruction, of the wife’s camicity to labor and the loss of her service resulting therefrom. Railway Co. v. Henson, 7 C. C. A. 349, 58 Fed. 531, 533. To my mind, this was to hold that the wife could not recover for them, and I think that this is the true rule, and that it is in accord with the weight of- authority. Railway Co. v. Stone (Kan. Sup.) 37 Pac. 1015; Blaechinska v. Howard Mission (N. Y.) 29 N. E. 755, 15 L. R. A. 215; Filer v. Railroad Co., 49 N. Y. 47; Tuttle v. Railroad Co., 42 Iowa, 518, 521. My conclusion is that her earning capacity was not a proper element of the damages of the married woman in this case, and that the judgment ought to be reversed for that reason.
