#### Jeremiah Gorman, Respondent, *v.*The New York, Chicago and St. Louis Railroad Company, Appellant, Impleaded with South Buffalo Railway Company, Defendant.

Fourth Department,

November 11, 1908.

Tort —action by father based on injuries to infant son — damages — services rendered by mother.

A'father suing to recover damages for loss occasioned by personal injury to his infant son is entitled to recover not only- the value of his own services ren- : deréd in caring' for the child, but also for like services rendered by his wife, as -he is entitled to her services. ; ■

In such action the' father cannot recover for the destruction Of his watch, which was carried by his son at the time'of the injury, if such damage is not pleaded. Amount of recovery reduced.

Williams,. J., dissented..

Appeal by the defendant, The New York, Chicago and St. Louis Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the- office of the clerk of the county of Erie on the 3d' day of February, 1908, upon the verdict of a jury for $4,418, and also from an order entered in said clerk’s office on. a the 3d day of .February, 1908, denying the said defendant’s' motion for a new trial made upon the minutes.

*Evan*Hollister, for the appellant.

*Clarence M. Bushnell*and *Ralph S.*Kent, for -the respondent.

Robson, J.:

Plaintiff’s damages were fixed by the verdict of "the jury at the sum of $4,418. This sum. was awarded as compensation- for the pecuniary injuries suffered by plaintiff by reason of an injury' to plaintiff’s son, a minor, occasioned by defendant’s negligence: In arriving at the amount of their verdict, the jury included' therein, as appears by their special verdict rendered as directed by the trial court, the sum of $500, fixed by them as the valué of the services of plaintiff’s wife-for nursing the injured son. If plaintiff is entitled to recover anything for the services of his wife thus rendered, *415the amount fixed by the jury as the value, thereof is fully warranted by the evidence.

Plaintiff’s right to recover the value of services thus rendered seems to be supported by the clear weight of authority expressed in judicial opinions and in text books of recognized value. *(Martin*v. *Wood,*23 N. Y. St. Repr. 457; 1 Joyce Dam. § 305; 4 Suth. Dam. [3d ed.] 3648, and cases cited by both writers.)

That a husband is not entitled to recover the value of such services has been distinctly held in the case of *Goodhart*v. *R. R. Co.*(177 Penn. St. 1), which has been followed by that court in the later case, of *Woeckner*v. *Erie Electric Motor Co.*(182 id. 182). But we are inclined to accept the statement of the author first above cited as embodying our view of the law to be here applied, as follows: “In *an*action by a parent to recover damages for an injury to a child, he may recover the expenses incurred for medical attendance, medicine, nursing, and in fact all expenses which have been sustained as a result of the injury. And in this connection the rule seems to be, that a father may recover compensation for his own, or his wife’s services in nursing an injured child. So evidence of the value of the services of the plaintiff’s wife in attending to an injured child is admissible.” (Joyce Dam. supra.)

Apparently, a husband is still entitled to the services of his wife in his household, and, in the absence of any different agreement or understanding, is entitled to recover for her services rendered to a third person outside of and beyond the household duties. (Birk*beck*v. *Ackroyd,*74 N. Y. 356; *Blaechinska*v. *Howard Mission and Home,*130 id. 497.) He is entitled to recover the value of his own services necessarily rendered in the care of his injured infant child from the party negligently causing the injury. *(Barnes*v. *Keene,*132 N. Y. 13.) There would seem to be equal reason in support *of*plaintiff’s right to recover for like services of his wife, he being personally entitled to such services to the same extent as he is to his own.

It áppears that the jury awarded for loss of services of plaintiff’s son and for plaintiff’s services in nursing the latter at least the sum of $1,070.95. We think that the proof in the case does not warrant a recovery on account of these two items to that amount, and that this amount should be reduced by $500. The claim of $25 for *416destruction of plaintiff’s watch, which his son was carrying at the time of the latter’s injury., is clearly not within the pleadings, and the allowance of that amount by the jury was error. *.(Schmitt*v. *Dry Dock, E. B. & R. R. R. Co.,*3 N. Y. St. Repr. 257.)

All concurred, except Williams,- J., who dissented and- voted for reversal absolutely.

Judgment and order reversed and new trial granted, with costs to appellant to abide event, unless plaintiff within twenty days stipulates to reduce the verdict to the slim of $3,893, as of the date of the rendition thereof, in which event the judgment is modified accordingly, and as so modified is, together with the order, affirmed, without costs of this appeal to either party.