
    The Baltimore & Ohio Railroad Co. v. Glenn.
    
      Husband has right of action, at common Jaw, against one who wrongfully injures his wife — Right not abridged by Sections 8108 to 311~, Rev. Stat.
    
    At common law, a husband has a right of action against one who wrongfully, or through negligence injures his wife, to recover for the resulting loss of her services, and Tor his necessary medical, surgical and other expenses in healing her injuries; and this right of action is not abridged or affected by the legislation embraced in Sections 3108 to 3117 inclusive of the Revised Statutes.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Licking county.
    This case was heard and submitted with No. 7196, The Baltimore & Ohio Railroad Company v. Melissa Glenn. In that case Mrs. Glenn recovered a judgment in the lower court against the plaintiff in error, for damages sustained through the alleged negligence of the servants of the railroad company in so operating and running an engine in its yards over a public street in the city of Newark, as to strike , her and crush her left foot in such a manner as to require amputation above the ankle. The injuries alleged in her case were the loss of the foot as a permanent injury, and the pain and suffering incident thereto. This court has recently affirmed the judgment in her favor in that case.
    The defendant in error m this case, James P, Glenn, is the husband o.f Melissa Glenn, and he brought his action against the railroad company, charging in his petition the same acts of negligence on the part of the company, and the same injuries to the wife which were contained in her petition. The recovery sought by the husband in this case, is for the loss of the services of the wife which resulted from her injuries, and also for money expended by him in her surgical and medical treatment in the endeavor to cure and heal them.
    The railroad company filed a general demurrer to the petition of the husband in this cáse which was overruled by the trial court. An answer filed denied all allegations of negligence made against it, and charged contributory negligence upon the wife, Melissa. This chárge was denied by a reply.
    On the issues joined, the jury found for the plaintiff and assessed his damages. Thereupon the company moved the court for judgment on the pleadings notwithstanding the verdict. This motion was overruled, and also a motion for a new trial, and judgment was entered on the verdict. The circuit court affirmed this judgment, and error is prosecuted in this court to reverse both judgments.
    The same grounds of error assigned for the reversal of the judgment of the wife, Melissa Glenn, are assigned in this case, with the additional claim that since the passage of the law found in Secs. 3108 to 3117, inclusive of the Revised Statutes, the husband has no right of action for the loss of the services of his wife occasioned by the negligence of another, nor, for her necessary surgical and medical attention; and this question is preserved in the record by the demurrer to the petition, the motion for judgment on the pleadings and by exceptions to the charge of the court
    
      Mr. J. H. Collins and Messrs. Kibler & Kibler, for plaintiff in error.
    Of course, it is conceded that at common law the plaintiff below would have a cause of action for the injury to his wife.
    But our contention is that under Secs. 3108-3117 of the Revised Statutes of Ohio, the common law rule upon this subject is entirely changed. The two elements of damages which the plaintiff sought to recover were for loss of the services of his wife and for money expended for medical attention. Under the sections of the statute referred to the defendant in error was not the owner of his wife’s services. They belong to her exclusively, and if any recovery was had therefor, she was entitled to it in her suit against the company, and the same may be said of the medical expenses. That was her debt for which her husband was not liable, and if he paid it, he has no more right to recover than would a stranger. He was not liable for her debts, nor she for his. It is therefore respectfully submitted that the defendant in error was not entitled to recover any judgment against the railroad company.
    
      Mr. B. C. Smythe and Mr. S. M. Hunter, for defendant in error.
    No law has yet been passed depriving the husband of the services of his wife. In this case, he is not suing for the wages of her separate labor, nor for the violation of her rights. He is simply suing for the loss of what was his own. The law still casts upon him the duty of caring for her, and the expense of her cure. And whoever deprives him of those wifely services, or makes those expenses necessary, must compensate him. Pomeroy’s Remedies, Sec. 242; Porter v. Dunn, 131 N. Y., 314; Brooks v. Schwerin, 54 N. Y., 343; Reynolds v. Robinson, 64 N. Y., 589; Coleman v. Burr, 93 N. Y., 17; Shanahan v. Madison, 57 Wis., 276.
   By the Court :

In the case of the plaintiff in error against Melissa Glenn, recently affirmed, this court has decided all the questions of error which are common to both cases, and they will not be further considered in this opinion. Here, however, it is asserted by the plaintiff in error, that the wife, Melissa, having recovered for the injuries she sustained through the negligence of the railroad company, the husband, defendant in error, is without a right of action for his loss of her services while disabled by such injuries, or for expenses necessarily incurred by him in caring for her and healing her of the same. This assertion is connected with the proposition that if there once existed at common law in this state a right of action in the husband to recover on such grounds, it has been superseded or taken away by statute. It is not seriously questioned by counsel, that at common law, the husband is entitled to the society and services of his wife, and that for the invasion of such right to his damage, he could maintain an action. And this right of the husband is not affected by the fact that the wife has sued and recovered for the damages she has sustained.

It is not averred in the answer in this case, nor claimed in argument, that Mrs. Glenn, in her petition against the railroad company, made any demand for the expenses of her care, or medical or surgical treatment; and of course the loss of her services to the husband, while she was disabled by reason of her injuries, could have formed no part or element of her suit. Hence, it is still the law, that for such expenses and loss of services, the husband has a right of action against one whose negligence or wrong inflicted the injuries, unless the right is taken away by legislation. It is said this change has occurred by reason of Revised Statutes, Secs. 3108 to 3117, inclusive. These sections are found under the title “Husband and wife,” and they make some brief provisions regarding the marriage relation, some of which are not new to, or an improvement upon the common law: For example, Sec. 3108 states that “husband and wife contract toward each other obligations of mutual respect, fidelity and support;” and Sec. 3110 makes it the duty of the husband to support himself, wife and minor children. If he is unable to do so, the wife must assist him so far as she is able. There is nothing new or novel in this statement of duty. The only other section which makes any approach to our subject is 3111, which provides that “neither husband nor wife has any interest in the property of the other, except” dower in real estate. This section does not abridge the common law right of the husband in this case. He is not asking for any interest in the property of the wife. She never had any interest in his cause of action. For her personal injuries and suffering incident thereto, she has exercised her separate right of action, but she has not and could not assert in her action the grounds for recovery which exist only in the husband.

In brief, there is nothing in these sections, or any of them, which abridges the right of the husband to recover as he has done in this case. The holdings of the lower court being in harmony with these views, its judgment is affirmed.

Judgment affirmed.

Burket, Speak, Davis, Shatjck and Price, JJ., concur.  