Page:Harvard Law Review Volume 9.djvu/501

NOTES, 473 court, is directly in point, and agrees with the principal case, State v. LodgC) 2>Z -^tl. Rep. 312 (Del.). Married Women — Damages for Impaired Capacity to Labor. — Though the enfranchisement of woman from her common law bondage has been wellnigh completed by modern statutes, yet the process has gone on so intermittently that the courts are often called upon to fill up the intervals, and, by judicious interpretation of statutes, to systematize and complete the whole work. .A recent decision of this sort by the Massachusetts court has not only attracted wide attention among the profession, but has been given public prominence in the columns of the daily press. Hartnoti v. Old Colony R. R. Co., 42 N. E. Rep. 505, is an authority for the principle that, in an action of tort brought by a married woman for personal injuries, her impaired capacity to labor may be considered in estimating damages. This decision seems a necessary consequence of the statutes which give a married woman the right to her earnings, and allow her to sue for them in her own name ; and the result reached is by no means unprecedented, even in Massa- chusetts. Jordan v. R. R. Co., 138 Mass. 425 ; Smith v. R. R. Co., 23 S. W. Rep. 784 (Mo.) ; Brooks v. Schwerin, 54 N. Y. 343 ; Fleming v. Town 0/ Shenandoah^ 67 Iowa, 505. All is not perfectly plain sailing, however ; for it must be remembered that the husband, notwithstanding modern statutes, still has his action for the loss of his wife's services ; and in order that there may not be a double recovery, their respective rights must be carefully distinguished. If the wife has recovered damages in one action for the loss to her attendant upon her impaired capacity to labor, the husband must not be allowed to recover in a later action for a loss which was not his, and for which satisfaction has already been given. However difficult it may be to divide the loss accurately, there can be little doubt on principle as to where the line should be drawn. So far as the injury to the wife disables her from performing household duties, the loss is the husband's and he alone can recover ; so far as she is disabled from earning money in an outside employment, the damage is hers. This distinction has been clearly pointed out in many cases. See Brooks v. Schwerin, supra. It would seem to follow that if the wife is engaged in no outside occu- pation, but confines herself to household duties, she should recover no damages of this nature. And it is so held. "The test of her right to damages for loss of time is whether she was in the employment of per- sons other than her husband, on her own account." Fleming v. Town of Shenandoahy supra. See also R. R. Co. v. McGimiis, 46 Kan. 199 ; Filer V. R. R. Co., ^g N. Y. 47 ; Thomas v. To7v?i of Brooklyn, 58 Iowa, 43S. Yet even in cases where she is not at the time engaged in a separate employment it may be open to question whether the impair- ment of her earning power, in the abstract, should not be considered by the jury. Conversely, it has been held that, if the husband would recover for the loss of his wife's services, he must show that such a relation existed between them that he was entided to those services. R. R. Co. v. Dickey, 41 Pac. Rep. 1070 (Kan.). 'I'he border line between house- hold duties and outside labor is reached when the wife is employed in her husband's business establishment. In such cases, when she receives no wages, the services are assimilated to those rendered in the house-