Hendricks v. St. Louis Transit Co.

BLAND, P. J. (after stating the facts). — 1. Depositions of witnesses residing in the State of Kentucky were taken in narrative form. Defendant moved to quash these depositions because they were not taken on — 161 — interrogatories. The court overruled this motion and the depositons were read in evidence. This ruling is assigned as error. There is no rule of law that requires the evidence of witnesses in a civil or criminal case to be taken on interrogatories. It is a common practice to take the evidence of witnesses in the form of questions and answers, but there is no rule enforcing any such practice, nor is it generally preferable to the narrative form. The principal objection to the latter form is that a witness, uninstructed, is prone to relate immaterial or irrelevant matter. This, however, may generally be avoided if counsel, in apt terms, directs the witness’s attention to the issue or issues upon which his evidence is desired. There are two methods, under the laws of this State, by which the deposition of a witness in another State may be taken by any officer authorized by the laws of this State to take such a deposition. First, by suing out of the court or out of the office of the clerk of the court where the suit is pending, a commission to take the deposition and delivering it to the officer therein named as authorized to take the same (E. S. 1899, sec. 2878). When the officer receives the commission he is authorized, if proper notice of the time and place of taking the deposition has been served upon the opposite party, to cause to come before him such persons as the party suing out the commission may name and to examine them touching their knowledge of anything relating to the matter in controversy (E. S. 1899, sec. 2882). This method was the one adopted for taking the depositions of the Kentucky witnesses and is the one generally used where the object is to examine the witnesses, generally, touching their knowledge as to any or all the issues in the case. Under this section (2878) the commission issues as a matter of right, and interrogatories need not be attached. [Glenn v. Hunt, 120 Mo. 330, 25 S. W. 181.] The second method is to give notice to the oppo — 162 — site party of the time and place when application will be made to the court where the case is pending or to the judge thereof, in vacation, for a special commission to take depositions (R. S. 1899, sec. 2891). If the court or judge issues the commission, interrogatories are settled by the court or judge when the commission is issued and must be attached to it (R. S. 1899, sec. 2893). The witness or witnesses are named in the interrogatories and their examination, of course, must be confined to the interrogatories attached to the commission. The ■granting of this special commission is not a matter of right, but rests largely in the discretion of the trial court or judge. [Shepard v. Railway, 85 Mo. 629.] 2. Over the objection of defendant, the court instructed the jury as follows on the measure of damages: “If the j-ury find for the plaintiff you will assess her damages at such sum as you may believe from the evidence will be a fair compensation to her. “1. For any pain or anguish of body or mind which the jury may believe from the evidence she has suffered and with ^reasonable certainty will suffer in the future, if any, fi'om her injuries and directly caused thereby. • “2. For any loss of the earnings of her labor, already suffered, if any, and such as with reasonable certainty she will suffer in the future from the impairment of her ability to work and earn money, if the jury shall believe from the evidence that she has or will suffer any such impairment of ability as the direct result of her injuries, in all not to exceed the sum of $4,500.” The second paragraph of this instruction authorized the jury to award plaintiff damages for any loss of earnings, past or future. Plaintiff testified that she lived with her husband and kept house for him; that he was old and infirm, unable to work and without means, and that their children were all grown up; that she had no occupation other than keeping house and doing fancy work, had no store or shop but went out and took or — 163 — ders for fancy work and did the work at her home during idle hours when not engaged in her household duties, and that she used her earnings to keep' up household expenses, “used them altogether in the house in keeping up family expenses.” Prom this evidence it is apparent that plaintiff worked as an aid in the service of her husband for the support of the family, therefore, the loss is, in contemplation of law, the loss of the husband for which he alone can sue. In Plummer v. Trost, 81 Mo. 1. c. 429, the court, referring to the statute giving a married woman the -wages of her separate labor, said: “While this statute gives the wife her wages, it is to be observed that it is limited to the wages ‘of her separate labor.’ The very foundation, therefore, of her right to such wages depends upon the fact whether the services were for her ‘separate labor.’ Under similar statutes allowing the Avife her earnings, the accepted construction is, that when her labor is performed on account of, or in connection with her husband, or is bestoAved on his business, or AAdiere there is nothing in the terms or circumstances of the contract to indicate an intention or purpose to concede to her the fruit of the given labor, the statute does not apply. [Beau v. Kiah, 4 Hun 171; Reynolds v. Robinson, 64 N. Y. 589; Hazelbaker v. Goodfellow, 64 Ill. 238.]” The Plummer Case is approvingly cited in Plummer v. City of Milan, 70 Mo. App. 1. c. 603. Rogers, in his work on Domestic Relations, section 235, says: “At common law there is no difficulty in solving the question who is entitled to the earnings and services of the wife during the coverture. These clearly belong to the husband. But under statutes enlarging her common laAV rights the difficulty is greater. These statutes, however, are not construed, as a general rule, so as to enlarge or modify the common, law rule further than is — 164 — necessary to give proper effect to the statutes. The doctrine seems to he, therefore, that the earnings of a married woman belong to her husband, though the local law may authorize her to act as a sole trader, and contract, sue and be sued with reference to her separate property, where the earnings are not connected with, and do not arise out of, her separate estate or business.” Perrigo v. St. Louis, 185 Mo. 274, 84 S. W. 30, was a suit by a married woman to recover damages for personal injuries, caused by a defective sidewalk. At pages 288-9, the court said: “It is true that the evidence discloses the fact that the plaintiff is a married woman, but it also discloses the further fact she was engaged in the business of running a boarding house in which she did her own work and that her husband was a cripple who did only such 'chores’ incident to the business as he was able to do. Under our statute a married' woman 'is 'deemed a feme sole so far as to enable her to carry on and transact business on her own account,’ in whom is also vested a right of action for any money due her as 'the wages of her separate labor’ or has grown out of any violation of her personal rights.’ The impairment of her ability to work in the business she was conducting would seem to be a proper element of her damages for the injury which caused it.” Under our statute and decisions construing the same, any wages earned by a married woman by her separate labor, not pertaining to her ordinary household duties, are her separate property, and it is no concern of the courts how she spends such earnings. They are hers to dispose of as she will, and if by an injury she is rendered unable to perform such separate labor by which she theretofore earned wages or received compensation, the particular loss is hers and not her husband’s. These views, we think are supported by Perrigo v. St. Louis, supra, and that the second paragraph of the in — 165 — struction on damages is supported both, by the law and the evidence. The judgment is affirmed. All concur.