Hodgkinson v. Hodgkinson , 43 Neb. 269 ( 1895 )

Ryan, C.

The defendant in error recovered a judgment against plaintiffs in error in the district court of Nemaha county. The cause of action, as stated, was that plaintiffs in error had induced their son, her husband, permanently to abandon the defendant in error, and to refuse to provide for her support. In connection with the history of desertion brought about as aforesaid there were allegations that plaintiffs in error had manifested the most determined and persistent disapproval of becoming grand-parents, and that to prevent this consummation they had induced their son to attempt to procure an abortion, which had failed, whereupon defendant in error was driven from the house of plaintiffs in error, wherein, with her husband, she had previously been living, and the separation and abandonment complained of immediately followed. The evidence was very conflicting, but there was sufficient to sustain the averments of the petition. There was presented in the motion for a new trial a claim that, because of surprise., plaintiffs in error should have been granted a new trial. In support of this claim there seems to have been used certain affidavits, but as there was no identification or preservation of them by bill of exceptions, they cannot be considered. No other error arising during the trial was presented or argued. The giving and refusal to give instructions afford no ground of complaint, for exception was taken only to a refusal to give one instruction requested, and the substantial part of that instruction was embodied in others given by the court on its own motion.

It is contended, however, that this action was not maintainable by the defendant in error, and that in any event a recovery could be had only for the loss of services of the husband. In respect to the proposition last mentioned it perhaps would be a sufficient answer to point out that at common law the services and chattels of the husband did not belong to the wife, as did those of the latter to the former, for which reason the general rule contended for is not derivable from a mere analogy as urged in argument. The right of the wife to bring this action in her own name is conferred by section 3, chapter 53, Compiled Statutes, which provides: "A woman may, while married, sue and be sued, in the same manner as if she were unmarried." In Bennett v. Bennett, 116 N. Y., 584, there is a satisfactory discussion of the rights of a married woman to recover for damages to herself under the rules of the common law, and as the same are affected by the provision of our statute above quoted, and it is shown that at the common law the right to the recovery of damages existed but could only be had by the husband and wife jointly, on the theory that during coverture the independent claims of the wife to rights of action and chattels were suspended! By the statutory provision that a woman may, while married, sue as if she were single this condition of suspension was terminated, and the wife could then sue, just as at common law she could sue in her own name when the suspension of her right in that respect had been ended by the death of her husband. (See also in support of the right of a married woman to maintain an action of the nature of that at bar, the case of Warren v. Warren, 89 Mich., 123.) The judgment of the district court is

Affirmed.