(Filed 20 November, 1912.)
Husband and Wife — Negligence — Loss of Wife's Services — Recovery by Wife — Judgments — Estoppel of Husband.
When a husband has joined in an action with his wife to recover damages for a personal injury to them both, arising from the same negligent act, and his counsel withdraws all claim for damages for him, and the action is successfully prosecuted to recover damages for the wife's injuries inflicted on her, including damages arising for a loss or material impairment of her capacity for labor, particularly of a permanent nature, he, by thus prosecuting and acquiescing in the action of his wife, will be deemed to renounce in her favor his right to recover for the loss of her services, and the judgment will estop him from any further demand thereof.
APPEAL by defendant from Daniels, J., at July Term, 1912, of MECKLENBURG.
T. L. Kirkpatrick, E. R. Preston, and Neill R. Graham for plaintiff.
Osborne Cocke for defendant.
CLARK, C. J., concurring in result; BROWN, J., concurring in the concurring opinion.
Action to recover damages for personal injuries, instituted by Louisa Price, feme plaintiff, and her husband, R. S. Price.
The record shows that, at the opening of the trial, plaintiff's counsel stated in open court that it was not their intention to claim damages for plaintiff's husband, R. S. Price. The jury rendered a verdict that Louisa Price was injured by the negligence of defendant company and suffered damages and to the amount of $5,000. There was no issue as to contributory negligence, same not having been pleaded as against either plaintiff. Judgment on verdict, and defendant excepted and appealed.
The complaint alleged, and there was evidence on the part of plaintiffs tending to show, that in the early evening, 27 September, 1911, 8:30 o'clock, plaintiffs, R. S. Price and wife, were driving a (451) horse and buggy out from the city of Charlotte, and when near defendant's track, on account of a rough place in road, the track being laid in the street or highway, they were run into by a car of the defendant company, which approached from behind plaintiffs, without signal or warning of any kind and at a much greater rate of speed than allowed by law; that as a result of the collision, both plaintiffs were thrown to the ground; the wife was dragged some distance and seriously injured, necessitating the amputation of her foot at the ankle; one arm was broken, leaving it crooked and stiff; she received also a deep cut and bruises on the head, which had to be sewed up with many stitches and which still cause her severe and continued pain; that plaintiff, Robert Price, was also thrown to the ground and received bruises, and his horse was killed. There was general denial on the part of defendant company and evidence offered in support of its position, but, on the issue as to defendant's negligence, and under a charge which gives defendant certainly no just ground for complaint, the facts stated have been accepted by the jury, and no good reason has been shown for disturbing the verdict on that issue.
It was chiefly urged for error that his Honor, in charging the jury on the issue as to damages, allowed the feme plaintiff, in addition to compensation for her pain and suffering, to recover by reason of her diminished capacity to labor and make a living. There are decisions to the effect that, in actions for personal injuries by the wife, when there has been loss or material impairment of her capacity for labor, and particularly of a permanent nature, this may be properly considered as an element of the damages to be recovered. R. R. v. Nichols, 41 Col., 272; R. R. v. Jacobs, 88 Ga. 647; Powell v. R. R., 77 Ga. 192; 13 Cyc., p. 143. There is also high authority for the position that, in jurisdictions where the Constitution or statutes or both have conferred on married women the right to own, control, and dispose of property as if they were femes sole, a recovery of the kind in question should be allowed. R. R. v. Humble, 181 U.S. 56; Harmon v. R. R., 165 Mass. 100.
Our own Court has thus far taken a different view as to the (452) effect of these constitutional and statutory provisions, as in Syme v. Riddle, 88 N.C. 463, and other cases. In many of the States, however, in which this same view prevails, it is very generally held that such recovery should be allowed by the wife when it is shown that she is pursuing an independent employment; is engaged in making her own support and receiving her wages for her own benefit. Fleming v. Shenandoah, 67 Iowa 105; Bailey v. Centerville, 108 Iowa 20; Hadley v. Balantine, 66 N.J. L., 339.
The North Carolina decisions were rendered prior to the Martin Act, Laws of 1911, chapter 109, which practically constitutes married women free traders as to all their ordinary dealings, and we are not called on to determine the effect of this legislation on the question presented, as all the authorities here and elsewhere hold that a husband may confer this right to earn and acquire property upon the wife, in any event when the rights of creditors do not intervene. Syme v. Riddle, supra; Cunningham v. Cunningham, 121 N.C. 414; Peterson v. Mulford, 36 N. J., 481; Mason v. Dunbar, 43 Mich. 407.
It may be that, under our decisions as they now stand, it would not of itself be sufficient to support the verdict that the wife, living at the time with her husband, was earning her own support, working out for hire and receiving the wage; but it appears, further, that the husband, made a party plaintiff, pursuant to the statute, and charged to some extent with the duty of looking after his wife's interests ( Vick v. Pope, 81 N.C. 22), has permitted his wife to insist on this loss of capacity as an element of recovery and has acquiesced in the result. This, in our opinion, should be held to validate such a recovery even if it could be otherwise questioned. True, there are decisions to the effect that, in a suit of this kind by the wife, a verdict and judgment for defendant was not allowed to estop the husband in a suit to recover for his own injury, a position that seems to have been stated with approval in one case where the husband was a nominal party ( Walker v. Philadelphia, 195 Pa. St., 168), but none of these authorities, so far as examined, would sustain the principle that when a husband, party of record, has thus formally given his sanction to a recovery of this character, that (453) the same could be afterwards questioned either by him or by the company.
Our decision is in no way affected by the entry on the record that plaintiffs' counsel stated in open court that "it was not their intention to claim damage for plaintiff husband." Such an entry by correct interpretation was intended to refer to the cause of action also set forth in the complaint for the physical injuries to the husband and the wrongful killing of his horse. If allowed any effect on the wife's cause of action, it permits and in our opinion should receive the construction that the husband made no claim to the damages in any way incident to the wife's cause of action, but formally renounced the same in her favor. In this view it only gives emphasis to the position that on the record the husband has formally passed to the wife the right to recover for the loss or impairment of her capacity to earn a living. The other portions of his Honor's charge in this connection, to which objection is also made, was only in illustration of the proper method of arriving at the present value of the loss to the wife, and does not afford ground for substantial criticism.
After careful examination, we are of opinion that no reversible error has been shown, and the judgment in plaintiff's favor should be affirmed.