The court was requested to charge the jury that the plaintiff could not recover for the value of her time and services while she was disabled, on the ground that such services and time belonged to her husband. It is conceded that such was the rule of the common law, but it is claimed that it is changed or modified by the law of 1860 (chap. 90), entitled "An act concerning the rights and liabilities of husband and wife," as amended by chapter 172 of the Laws of 1862. That act provides, among other things, that the property which a married woman "acquires by her trade, business, labor or service, carried on or performed on her sole or separate account, * * * shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband or be liable for his debts, except such debts as may have been contracted for the support of herself or her children, by her as his agent." (§ 1.)
It is also provided by section 2, that "any married woman may carry on any trade or business and perform any labor or services, on her sole and separate account, and that the earnings of any married woman, from her trade, business, labor or services, shall be her sole and separate property, and may be used or invested by her in her own name." And by *Page 351 section 7, "Any married woman may, while married, sue and be sued, in all matters having relation to her property, which may be her sole and separate property, * * in the same manner as if she were sole, and she may bring and sustain an action in her own name, for damages, against any person or body corporate, for any injury to her person or character, the same as if she were femesole, and the money received upon the settlement of any such action, or recovered upon a judgment, shall be her sole and separate property."
These provisions, while securing to a married woman compensation for personal injuries as her sole and separate property, and giving to her the right to sue for it in her own name, do not give her a right to sue for her labor and services unless "performed on her sole and separate account;" and the earnings that are secured to her as her sole and separate property are such as arise and result from her labor and services performed on her sole and separate account; and it has recently been decided by the Court of Appeals that unless the wife is actually engaged in some business or service in which she would (but for the personal injury for which she is entitled to compensation) have earned something for her separate benefit, and which she has lost by reason of the injury, she has sustained no consequential damages, having lost nothing pecuniarily by reason of her inability to labor. This is placed distinctly on the ground that the services and earnings of the wife belong to the husband, and that he may maintain an action for them when she, at the time of the injury, was not carrying on any business, trade or labor upon or for her sole and separate account. (See H.M.Filer v. The New York Central Railroad Co., 49 N.Y.R., 47, etc.)
The facts disclosed in the present case do not entitle the plaintiff to a recovery for the value of the services lost while she was disabled.
It appeared by her own testimony that she, at the time of the trial, resided at No. 104 West Thirty-second street, in the city of New York, and that she and her husband had resided there twelve years in one house, and that her husband was *Page 352 living at the time of the trial and was present in court; that on the day of the accident she had been at work at a Mrs. Scott's, in Twenty-third street, for whom she was working by the day, and that her husband also worked out as a brass finisher; that she did all her own housework, that she took care of the children when at home; and that the children were at school when she was hurt. She testified in relation to her working at that time as follows: "I was able to go out and work by reason of their being at school, otherwise, I did my work and the work of my family, my own family washing; I did my own work and the family cooking; had the care and nursing of my children;" and she said that since the injury she could scarcely do any of her own work.
This evidence did not show that the plaintiff was carrying on or conducting any business or trade, or performed any labor for her sole and separate use and benefit, or for or in relation to any business or trade prosecuted on her own account, independent of and beyond the control of her husband, or that she herself kept what was received for her daily wages, or what disposition was made of them. Indeed, the fair inference is that she only worked out occasionally, and not as a general rule, and that at the time the injury occurred to her she was enabled to be absent and do what she did because her children were then at school, but that when they were at home she also remained there, taking care of them and doing the usual and ordinary household duties of the family. What she did was consistent with the practice of a husband and wife in moderate or humble circumstances — to go out to work in the day-time and return in the evening — contributing their respective earnings to the general and common support and maintenance of themselves and their children, or for the accumulation of means for the purchase of a homestead or other property. There is certainly nothing in such a fact, alone, which can characterize the work or labor thus done by the wife, as performed for her sole and separate account, or that shows an intention that the earnings resulting therefrom shall constitute or form part of her separate estate, and that the *Page 353 husband shall have no participation in or right to the control and disposition thereof. The acts of the legislature, above referred to, are an innovation on the common-law rights of the husband, and it was incumbent on the plaintiff to show affirmatively and clearly that he was divested thereby of those rights, and that she alone had become entitled to the benefits and privileges conferred by them on married women. Those facts do not appear.
I am, therefore, of opinion that the judgment should be reversed and a new trial ordered, costs to abide the event.
For affirmance, EARL, REYNOLDS and JOHNSON, CC.
For reversal, LOTT, Ch. C., and GRAY, C.
Judgment affirmed.