Opinion
Argued December 16, 1889
Decided January 14, 1890
John M. Scribner for appellant. Louis Z. Kinstler for respondent.
The recovery had was for damages sustained by the plaintiff, a married woman, by reason of personal injuries received while a passenger on defendant's road.
Presumptively, damages for negligently diminishing the earning capacity of a married woman belong to her husband, and, when she seeks to recover such damages, the complaint must contain an allegation that for some reason she is entitled to the fruits of her own labor; or, if she seeks to recover damages for an injury to her business, she must allege that she was engaged in business on her own account, and by reason of the injury was injured therein as specifically set forth. No such allegations are contained in the complaint in this action.
Nevertheless the plaintiff was permitted to prove, against the objection of the defendant, that the evidence was irrelevant and immaterial, and called for special damages not alleged in the complaint; that she was engaged in the dressmaking business; sold fancy goods and dry goods; was accustomed to make from sixteen to twenty dollars per week; and that because of her injuries was prevented from working for two months. This was error. ( Gumb v. 23 d St. R. Co., 114 N.Y. 411; Saffer v. D.D.E.B. B.R.R. Co., 24 N.Y.S.R. 210.)
The respondent in support of the ruling cited Hartel v. Holland, (19 Weekly Digest, 312) and Ehrgott v. Mayor, etc. ( 96 N.Y. 275).
But the question here presented, involving the right to recover damages, which the law does not presume to be the immediate and natural consequences of the injury in the absence of a special averment of such damages, does not appear to have been raised or passed upon in either case. Therefore they do not support the respondent's contention.
As the exception taken to the ruling of the court referred to calls for a reversal of the judgment it is unnecessary to consider the other exceptions taken.
The judgment should be reversed.
All concur, except HAIGHT, J., not voting.
Judgment reversed.