The opinion
ON MOTION EOR REHEARING.
PLEASANTS, Associate Justice.
We have duly considered appellant’s motion for a new hearing, and after weighing the argument of its learned counsel in support of the motion, we are constrained to say, with all deference to counsel, that we find nothing in their motion or their briefs which shakes our confidence in the correctness of the decision rendered herein on a former day. Counsel misapprehend the purpose for which the cases of Brown v. Sullivan, Railway v. White, and Railway v. Prince are cited in the opinion announcing the decision in this case. These authorities were cited to show the liability of a railway company to a mere licensee for injuries sustained by the negligence of the company’s servants. The opinion does not hold that these cases negative the proposi
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tian, that a wife of a railway employe can not in this State maintain suit, in the name of her husband against the husband’s employer for injuries-inflicted by a fellow servant of her husband. The opinion rejected this. proposition, and attempted to show its fallacy, but not by reference to-the decisions above cited.
If we apprehend correctly the ground upon which appellant’s counsel' rest their motion for a new hearing, it is this: Because the law does not-permit the husband to recover from his employer damages for injuries received by his wife through the negligence of the husband, therefore the-husband can not recover from his employer for injuries to his wife inflicted through the negligence of the husband’s fellow servant. To the-proposition, that the husband can not recover, and should not recover, of' his employer damages for injuries received by his'wife through his negligence, we give our full assent; but to the other proposition, that the husband can not recover of his employer damages for injuries sustained by the-wife through the negligence of the husband’s fellow servant, we can not as>sent. The second proposition is not, as counsel in their argument seem to-assume, a logical sequence of the first. Every employe of a railroad, in contemplation of the law, by the contract of employment, agrees and undertakes to exercise skill and care in the discharge of his duties. Such being the nature of the contract between the employer and the employe, it would manifestly be unjust to the employer to permit an employe to-recover damages from his employer for injuries received by the wife of' the employe through his own negligence. To permit such recovery would allow the employe to reap a benefit for his breach of contract. And the ■ wife should not be permitted to recover, for the reason that to permit her to do so would, in effect, concede the right of the wife to recover damages from her husband for injuries inflicted upon her person by or through his negligence. Because, if the employer be liable to the wife for injuries inflicted upon her through the negligence of her husband, then the-employer should recover from the husband, under his contract of employment, the damages recovered of him by the wife. These are the reasons, as we conceive, why the wife is held by the law chargeable with the negligence of her husband, and is in such case denied a remedy against his-employer.
But to deny the wife the right to recover damages for injuries resulting from the negligence of her husband’s fellow servant, is to bind her by a contract to which she is not a party. The wife is not bound by the husband’s contract to assume all risks of injury to his person resulting from the negligence of his fellow servants. The existence of the wife is not with us, as at common law, merged in that of her husband. She has rights, and can maintain suit for their protection; and she can recover damages for wrongs done her, and the money recovered for such wrongs is not, as at common law, the exclusive property of the husband. And.
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while it is true that the wife must generally sue in the name of her husband, he who has wronged her can not justify under a contract made with her husband, to which she is in nowise a party. The husband, it is true, can by his contract convey the interest of the wife in the community estate, but we know of no law which would authorize the husband to make a contract binding upon the wife, which would exclude her from the right to recover for injuries to her person, inflicted by the wrong or negligence of another. The motion must be denied.
Motion overruled.
Delivered June 29, 1893.
Writ of error was refused by the Supreme Court November 8, 1893.