To the extent that plaintiff's domestic relations established her as a married woman with a living husband, this was admitted by defendant's answer.
Defendant disclaimed knowledge sufficient to form a belief as to the extent of plaintiff's injuries in some respects, but, as to her allegation that as a consequence thereof she had "been unable to do housekeeping and tend to and nurse her invalid husband," defendant took no legal exception otherwise than hereinafter noted, but denied the same. This issue was the basis of the instruction (not objected to) quoted in the opinion of the majority. *Page 90
The evidence that plaintiff's husband had been sick for fifteen years and was unable to work was offered, doubtless, to support the issue thus tendered by plaintiff.
It seems to me that an injured person may describe his vocation as bearing upon the consequences of incapacity to pursue it. The trial court at one point said that the evidence was admitted "to show general incapacity."
The law of this state (section 68-105, Comp. 1929) commands the wife to support the husband when he has no separate estate, and there is no community property, and he is unable, from infirmity, to support himself.
Under such circumstances, it seems appropriate for the injured wife in this case to show that she was one upon whom the law had imposed an obligation, and that her injuries, occasioned by defendant's negligence, were of such an extent as to deprive her of the capacity to discharge such obligation.
Appellant in its brief is content to assert without elaboration that the evidence was not relevant or material as an element of plaintiff's damages to herself. "As a quality of evidence `relevancy' means applicability to the issue joined." Black's Law Dictionary. There is a conflict in the decisions as to whether the issue, supra, is appropriate to the measure of damages. If defendant was content to let the issue tendered go unchallenged, and join issue and permit the court to instruct upon it, I think, under the circumstances, the error, if any, in the admission of the evidence, was cured. The defendant by joining issue, and permitting the instruction, seemed to concede that the cause of action existed, but asserted by affirmative answer that plaintiff was "a married woman residing with her husband in the State of New Mexico, and that the cause or causes of action alleged in the complaint were, and are, the property of the married community of the plaintiff and her husband, and that the husband is the proper party to sue for the same, and is the necessary party to the action." One cause of action arises, doubtless, from the violation of the wife's right of personal security. Another may be the right of the husband to recover damages for the consequential injury to him caused by the loss of the services of his wife and the expenses incurred by her injuries. By some courts it is said that the wife may maintain the first and the husband the second. McKay says the right of action for injury to the wife is not community property, at least until reduced to judgment, and that the character of the judgment as separate or common takes its character from the right violated. It seems to be principally a question of parties. But, as no ruling of the trial court was invoked on this interesting question, I mention it merely for emphasis to my assertion that the defendant accepted the issue tendered by the plaintiff.
I must therefore register my dissent. *Page 91