Brady, Dean Brady, of Brookhaven, for appellants.

If the trial court was correct in not changing venue, then the judgment must be reversed and judgment entered here because: (1) Appellant waived the adjudication of liability on the first appeal, and re-opened the whole question of liability; (2) Was not entitled to the peremptory instruction granted her; but (3) Appellant was entitled to a peremptory instruction, because: (a) It complied with section 6125, as to the ringing of bell; and (b) Even if statutory signals were not given, appellee and the driver saw the train in ample time to have stopped, and had every notice which signals could have given them.

Appellee again deliberately reassumed the burden of establishing: (1) That she was a guest in the car; (2) That the Liberty Road was a public highway; (3) That the curve in the railroad track approaching the highway crossing was of such a nature as to prevent a traveler's seeing an approaching train except for a short distance; (4) That a traveler's view is obscured by banks or hills, which could have been cut down at reasonable cost; (5) That the whistle was not blown nor bell rung as required by statute; (6) That the train was running more than forty miles an hour; (7) That the automobile was brought to a stop as provided by law and proceeded when there was no reasonable grounds for belief that there was a train approaching, and she was struck and injured.

There never was any denial of allegation (2). The trial court instructed in appellant's favor as to allegations (1), (3), (4), and (6). As to allegation (5), the trial court both instructed peremptorily and instructed as upon an issue. Yet each and every one of these issues, with the single exception of the last, was adjudicated in her favor upon the first trial. In offering tesitmony on these features, even if the witnesses had been the same and had given virtually a phonographic transcription of their former testimony on these adjudicated points, the issues were thereby again submitted to the new jury.

Y. M.V.R.R. Co. v. M. Levy Sons, 147 Miss. 831, 112 So. 786; I.C.R.R. Co. v. Humphries, 164 So. 22; Norfolk Southern Ry. Co. v. Ferebee, 238 U.S. 269, 59 L.Ed. 1030; Railway Co. v. Moquin, 283 U.S. 520, 75 L.Ed. 1243; L. N.R.R. Co. v. State, 65 So. 881; Bales v. Strickland, 139 Miss. 636, 103 So. 432; Brewer v. Browning, 115 Miss. 358, 76 So. 267; Haines v. Haines, 98 Miss. 830, 54 So. 433; True-Hixon Lbr. Co. v. Thorn, 155 So. 181, 158 So. 909; Travelers Ins. Co. v. Inman, 167 Miss. 288, 138 So. 339, 147 So. 663.

Appellee was not entitled to the peremptory instructions granted her.

Appellant was entitled to a peremptory instruction, because it complied with section 6125, as to the ringing of the bell.

Horandt v. Railroad Co., 73 A. 93; Rich v. Railway Co., 149 Fed. 79, 78 C.C.A. 633; Railroad Co. v. Johnson, 157 Miss. 266, 126 So. 827; M. O.R.R. Co. v. Bennett, 127 Miss. 413, 90 So. 113.

Even if statutory signals were not given, appellee and the driver saw the train in ample time to have stopped, and had every notice which signals would have given.

Peters v. Ry. Co., 135 Ala. 533, 33 So. 332; Ry. Co. v. Williams, 137 S.W. 828; Railroad Co. v. Batsel, 140 S.W. 726; Zibbell v. Sou. Pac. Co., 160 Cal. 237, 116 P. 513; Westerkamp v. Railroad Co., 41 Colo. 290, 92 P. 687; Harten v. Railroad Co., 18 App. Cas. 260; Johnson v. Railroad Co., 61 Ill. App. 522; Railroad Co. v. Kirby, 86 Ill. App. 57; Railroad Co. v. Galligher, 109 Ill. App. 67; Ry. Co. v. DeFrietas, 109 Ill. App. 104; Railroad Co. v. Vremeister, 112 Ill. App. 346; Ry. Co. v. Hirsch, 132 Ill. App. 656; Railroad Co. v. Fraze, 150 Ind. 576, 65 A.S.R. 377, 50 N.E. 576; Ry. Co. v. Baker, 104 S.W. 1182; Artz v. Railroad Co., 34 Iowa 153; Payne v. Railroad Co., 39 Iowa 523; Bloomfield v. Ry. Co., 74 Iowa 607, 38 N.W. 431; Young v. Ry. Co., 57 Kan. 134, 45 P. 583; Smith v. Railroad Co., 87 Me. 339, 32 A. 976; Blumenthal v. Railroad Co., 97 Me. 244, 54 A. 747; Smith v. Railroad Co., 87 Me. 339, 32 A. 967; Day v. B. M.R.R., 97 Me. 528, 55 A. 520; McCarthy v. Railroad Co., 90 A. 490, 54 L.R.A. (N.S.) 140; N.C. Ry. v. Medairy, 86 Md. 168, 37 A. 796, 3 Am. Neg. Rep. 411; Ry. Co. v. Beasley, 117 Md. 270, 83 A. 157; Carlson v. Ry. Co., 296 Minn. 504, 105 N.W. 555, 113 A.S.R. 655, 4 L.R.A. (N.S.), 349; State v. Dettner, 27 S.W. 1117; Hook v. Ry. Co., 162 Mo. 569, 63 S.W. 360; State v. Curley, 70 S.W. 875; Barrie v. Co., 102 Mo. App. 87, 76 S.W. 706; Porter v. Ry. Co., 199 Mo. App. 82, 97 S.W. 880; Schaub v. Ry. Co., 133 Mo. App. 444, 113 S.W. 1163; Waggoner v. Railroad Co., 152 Mo. App. 173, 133 S.W. 68; Dolfini v. Railroad Co., 178 N.Y. 1,

70 N.E. 68; Fiddler v. R.R. Co., 64 App. Div. 95, 71 N.Y.S. 721; Madigan v. Railroad Co., 74 N.Y. Sup. 143, 68 App. Div. 123; Smart v. Railroad Co., 81 App. Div. 402, 80 N.Y.S. 906, 177 N.Y. 529, 69 N.E. 1131; McKinley v. Ry. Co., 86 N.Y. Sup. 461, 91 App. Div. 153; Stepp v. Ry. Co., 29 N.Y. Sup. 1008, 80 Hun. 178; Belch v. Railroad Co., 36 N.Y. Sup. 56, 90 Hun. 477; Montenes v. Ry. Co., 78 N.Y. Sup. 1059, 77 App. Div. 493; Golden v. Ry. Co., 98 N.Y. Sup. 848, 49 Misc. 521; O'Brien v. Railroad Co., 113 N.Y. Sup. 329, 129 App. Div. 288; Ry. Co. v. Elliott, 28 O. St. 340; Marland v. Railroad Co., 123 Pa. St. 487, 16 A. 624, 10 A.S.R. 541; Meyers v. Railroad Co., 150 Pa. 386, 24 A. 747; Urias v. Railroad Co., 152 Pa. 336, 25 A. 566; Holden v. Railroad Co., 169 Pa. 1, 32 A. 103; Ry. Co. v. Wilson, 60 S.W. 438; Ry. Co. v. Skinner, 119 Va. 843, 89 S.E. 887; Cawley v. Ry. Co., 101 Wis. 145, 77 N.W. 179; Stafford v. R.R. Co., 110 Wis. 331, 85 N.W. 1036; Marshall v. R.R. Co., 125 Wis. 96, 103 N.W. 249; Ry. Co. v. Smith, 40 L.R.A. 246, 86 Fed. 295 (CCA 5th), 30 C.C.A. 58; Ry. Co. v. Andrews, 130 Fed. 65 (CCA 8th), 64 C.C.A. 399; Waters-Pierce Oil Co. v. Van Eldern, 137 Fed. (CCA 8), 557, 70 C.C.A. 255; Ry. Co. v. Collier, 157 Fed. (CCA 8) 347; Railroad Co. v. Cundieff, 171 Fed. 319 (CCA 9) 96 C.C.A. 211; Railroad Co. v. Hurlburt, 221 Fed. 907, 137 C.C.A. (6) 477; Am. Car Fndry. Co. v. Kinderman, 216 F. 499, 132 C.C.A. (8) 577; Hickey v. Railroad Corp., 8 F.2d (CCA 8) 128; Michelson v. Nebraska, etc., Co., 63 F.2d (CCA 8) 597; Albrecht v. Railroad Co., 108 Wis. 530, 84 N.W. 882; Hook v. Railroad Co., 162 Mo. 569, 63 S.W. 630; Swart v. Railroad Co., 81 N.Y. App. Div. 402, 80 N.Y. Sup. 906.

If the trial court was correct in not changing the venue, but appellant should not be entitled to judgment here, then it is entitled to reversal, with remand, because the court did not submit all questions of liability to the jury.

On her examination, appellee, who was the plaintiff, had failed to show one single item of expense which she had disbursed in connection with her injuries. Directly questioned as to doctors' bills, she testified to what is generally known to be a fact, that the medical profession does not charge "within the family." The declaration charged that there had been cost of this kind in the sum of five hundred dollars. Her negative testimony utterly eliminated every such item. When her husband was being examined he was asked if her injury had occasioned "her" any expense. The fact that he was her husband did not give him greater knowledge along this line than she had, and the question and answer were improper from this viewpoint, but instead of attempting to itemize even those supposed expenses, he was permitted to make a wild guess of "probably a thousand dollars." Of course, appellant objected to such a statement, and yet the court permitted it to stand, in effect thereby advising the jury that there was an item of one thousand dollars then and there fixed by way of damages. This was gross error, and no more insubstantial than a thousand dollars is insubstantial.

Galtney v. Wood, 149 Miss. 56, 115 So. 117.

Again, when her declaration was filed, upon October 7, 1933, she sued for five hundred dollars for nurses' bills, drug bills, hospital bills, X-ray and physicians' bills, to that date incurred. The declaration is not prospective as to expense of this nature which might be incurred thereafter and it was improper to permit testimony relative to such damage subsequent to October 7, 1933.

Pickwick Greyhound Lines, Inc., v. Silver, 155 Miss. 765, 125 So. 340.

When appellant was being examined in chief, she was asked as to her earning capacity when she had been a trained nurse, which, according to the evidence, was before her marriage. Over appellant's objection, she was permitted to show what she had been earning, fixed at between one hundred and one hundred and fifty dollars per month. Directly in connection with that testimony, she also showed that her husband's health was poor and he had been ordered to give up practice. When, however, Dr. Smith, himself, was on the stand and appellant began to interrogate him relative to income which he had, independent of the fact that his health had forced him to cease active practice, the court declined to permit that examination.

The verdict of the jury is excessive and evinces passion and prejudice. The verdict is excessive for two reasons: (a) it is not justified by the extent of appellee's injury; (b) the jury did not reduce her recovery in proportion to the negligence of which she was guilty.

G.M. N.R.R. Co. v. Arrington, 107 So. 378; Railroad Co. v. Williams, 114 Miss. 238, 74 So. 835; Tallahala Lbr. Co. v. Holliman, 125 Miss. 308, 87 So. 661; Tendall v. Davis, 125 Miss. 30, 91 So. 701; Edward Hines Yellow Pine Trustees v. Holley, 148 Miss. 241, 106 So. 822; Batson-Hatten Lbr. Co. v. McDade, 132 So. 104.

The appellant most earnestly contends that the appellee should have plead her earning capacity, and that the burden of proof in this case, before evidence of the earning capacity of the appellee could have been introduced, was upon the appellee to show that she was engaged in her profession, that she was not supported by her husband, or that she was only temporarily out of employment in her profession. The record shows that the appellee met none of these requirements.

The record positively shows that she was married at and long before her injury and at the time of the first trial of this case, and that she ceased to engage in her profession, and was not engaged in her profession at the time of the second trial of the case, but that she had wholly and entirely abandoned it and was being supported by her husband. The burden was upon appellee to make proof that it was necessary for her to earn a living by the practice of her profession, which proof, she wholly failed to make, and, therefore, testimony relating to her earning power was not competent, and it was error per se for the court below to admit it.

As a matter of law and fact, it appears from the record in this case, that it was the duty of the husband to support his wife, and it is nowhere hinted that he failed to support her or that she did not rely upon him to support her, and she did not meet the burden of proof placed upon her in order to enable her, under the rules of evidence, to show her earning capacity.

In order to enable appellee to make the proof of her earning capacity in her profession, which the record shows she had abondoned, it would have been necessary for the declaration of appellee to have alleged the amount of her earning capacity and then for appellee to have made the proof that she expected to return to her profession. The declaration wholly fails to make any such allegation and appellee failed to make the proof that she expected to return to her profession. Therefore, it was error "per se" to admit testimony as to her former earning capacity.

This case must be reversed both as to liability and damages because the case was re-opened.

Y. M.V.R.R. Co. v. Levy, 147 Miss. 831, 112 So. 876; Minneapolis, St. Paul Sault Ry. Co. v. Moquin, 282 U.S. 520, 75 L.Ed. 1243.

Appellant contends that the failure of the court below to allow it to break the effect of the testimony of the appellee relative to her earning power before she was married, by showing that the appellee's husband was amply able to provide for her, as was his duty under the law, was likewise fatal error, on account of which a remittitur cannot be entered, since it is impossible for any one to know how the jury was influenced by the ruling of the court on this question and, therefore, the case must be reversed.

In an action by a wife for personal injuries, damages for loss of earnings are not provable unless they are pleaded.

Uransky v. Dry Dock East Broadway Battery R.R. Co., 118 N.Y. 304; Central City v. Engle, 91 N.W. 849.

Consequential damages are in all cases limited to the amount actually sustained; and unless the wife is actually engaged in some business or service, in which she would, but for the injury, have earned something for her separate benefit, and which she has lost by reason of the injury, she has sustained no consequential damages; she has lost nothing pecuniarily by reason of her inability to labor.

Filer v. New York Central R.R. Co., 49 N.Y. 47, 10 Am.Rep. 327; 13 R.C.L., page 1442, sec. 491.

Appellee must show that she is not a married woman who devotes her entire time to her domestic duties in order to recover damages for a personal injury destroying her earning power.

Twedell v. City of St. Joseph, 152 S.W. 432; Elliott v. Ry. Co., 236 S.W. 17; Kirkpatrick v. Ry. Co., 107 S.W. 1025.

Appellee must show that these damages were not remote damages.

City of Dublin v. Ogburn, 83 S.E. 939; Miss. Power Light Co. v. McCormick, 166 So. 534.

Engle Laub, and W.A. Geisenberger, of Natchez, and Watkins Eager, of Jackson, for appellee.

Appellee did not waive the adjudication of liability made by this court on the former appeal.

Miss. Central v. Smith, 154 So. 533, 159 So. 562; Rule 13, Miss. Supreme Court; Y. M.V.R. Co. v. Scott, 108 Miss. 871; N.O., etc., R. Co. v. Snelgrove, 148 Miss. 890, 115 So. 394; I.C.R.R. Co. v. Humphries, 164 So. 22; section 511, Code of 1930; Lizana v. Brown Realty Co., 146 Miss. 758; Davis v. Elzer, 126 Miss. 789; Nat. Life v. Williams, 169 Miss. 604; Whitley v. Holmes, 164 Miss. 423; Murray Chev. Co. v. Cotten, 169 Miss. 521; Ry. Co. v. Bridges, 159 Miss. 268.

Appellant was not entitled to a peremptory on the ground that the proof in this record shows that it complied with section 6125 as to the ringing of the bell.

Appellant was not entitled to a peremptory instruction as to the presence or absence of contributory negligence upon the part of the appellee.

23 C.J. 142-146; Wyldes v. Patterson, 153 N.W. 630; Miss. Cent. v. Hardy, 88 Miss. 732; G. S.I. v. Saucier, 139 Miss. 497; M. O.R. Co. v. Campbell, 114 Miss. 803; Simms v. Forbes, 86 Miss. 412; Kress Co. v. Markline, 117 Miss. 37; I.C. v. Smith, 102 Miss. 276; Mardis v. Y. M.V., 115 Miss. 734; Ry. Co. v. Rowles, 107 Miss. 97; Ry. Co. v. Holsomback, 151 So. 720; Gillespie v. Doty, 160 Miss. 792; Y. M.V. v. Pittman, 153 So. 382; M.P. L. Co. v. Smith, 153 So. 376; Woolworth v. Volking, 135 Miss. 410; Ry. Co. v. Jones, 134 Miss. 53; Davis v. Temple, 129 Miss. 6; G.M. N. Co. v. Seymour, 148 Miss. 456; Ry. Co. v. Ward, 132 Miss. 462; Ry. Co. v. Schultz, 87 Miss. 321; Ry. Co. v. Roberts, 173 Miss. 478; Ry. Co. v. Ray, 165 Miss. 885; Fraternal Aid v. Whitehead, 125 Miss. 153; Montgomery Ward v. Hutchison, 173 Miss. 701; Eastman Gardiner v. Sumrall, 160 Miss. 792; Cas. Co. v. Garrett, 161 So. 753; McL. McA. v. Rogers, 169 Miss. 650; Kress Co. v. Sharp, 156 Miss. 693; Stevens v. Locke, 156 Miss. 182; 4 C.J., 2839, 2844; Turner v. Bird, 44 Miss. 449; Central of Ga. R. v. Lee, 151 So. 840; Williams v. Ry. Co., 258 Ill. App. 34; So. R. Co. v. Morgan, 59 So. 432; Valdosta Mer. Co. v. White, 47 So. 961; Miss. Central v. Smith, 154 So. 533; Ry. Co. v. Lee, 115 So. 782; Miller v. Ry. Co., 78 L.Ed. 284; 22 C.J. 919-922; Stone v. Ry. Co., 151 N.W. 36; Stewart v. St. Paul City Ry. Co., 80 N.W. 855; Wyldes v. Patterson, 31 N.D. 282; Col. Ref. Co. v. Lathrop, L.R.A. 1917F, 890; 2 Wigmore, Evidence, sec. 792; Schaefer v. Ry. Co., 179 P. 523; Gregorie v. Ry. Co., 273 P. 76; Woodward v. Ry. Co., 133 S.W. 677; Ry. Co. v. Bryant, 159 Miss. 528; Peters v. Ry. Co., 33 So. 332; Zibble v. So. Pac., 116 P. 513; 1 Moore on Facts, secs. 414 and 415; Kress Co. v. Sharp, 156 Miss. 693; Mann v. Brick Co., 132 S.W. 19; Jones v. Detroit, 137 N.W. 513; Ry. v. Cutting, 5 Fed. 2d 936.

No error was committed by the trial court in failing and refusing to submit all questions of liability to the jury.

Cosey v. State, 161 Miss. 747; Hardaway v. State, 128 Miss. 722; Masonite Corp. v. Lockridge, 141 So. 758.

There was no error in the testimony in regard to the amount of actual expenses for hospital bills, drugs, etc.

It will be observed that the witness Dr. Smith stated that the expenses were upon appellee. Appellants objected thereto. The grounds for their objection were indefinite. Had this witness merely stated that the expenses of her illness had reached the sum of one thousand dollars, the evidence still would have been admissible. Then appellee would merely have failed to prove that she herself personally bore the expenses under the rule in Gault v. Wood, 115 So. 117. However, here the proof was that the expenses were upon appellee.

Dr. Smith testified that she personally had been put to an expense of approximately one thousand dollars. She has sustained her burden and no further questions were asked in regard to this by appellant.

That the account was not itemized is immaterial. There is other testimony in the record showing the extent of the bills, making the estimate of this witness entirely permissible.

The damages allowed are not excessive and do not evidence passion and prejudice on the part of the jury.

McDonald v. Moore, 159 Miss. 326; Peterson v. New Orleans Co., 77 So. 647; Gulf Refining Co. v. Miller, 153 Miss. 741; Bufkin v. Grisham, 157 Miss. 746; Caver v. Eggerton, 127 So. 727; Ry. Co. v. Arrington, 107 So. 378; Ry. Co. v. Williams, 114 Miss. 236; Lumber Co. v. Holloman, 125 Miss. 308; Tendall v. Davis, 129 Miss. 330; Ry. Co. v. Hays, 136 Miss. 701; Miss. Ice, etc., Co. v. Pearce, 161 Miss. 252; Pan. Am. Corp. v. Pate, 162 Miss. 638; Kress Co. v. Sharp, 156 Miss. 693, 159 Miss. 283; Miss. P. L. Co. v. McCormick, 166 So. 534; Ry. Co. v. Bridges, 159 Miss. 268; Ry. Co. v. Lott, 118 Miss. 816; 17 C.J. 1090; Hansen v. Ry. Co., 7 Can. R. Cas. 429; Mo. Ry. Co. v. Johnson, 53 P. 129; Wheeling, etc., R. Co. v. Suhrwiar, 22 O. Cir.Ct. 560.

The admission of the appellee's earning capacity was not error per se. The refusal of the court to permit appellant to prove the income of the husband of appellee was not error.

No error has been committed in the trial of this case in the admission of proof of appellee's (plaintiff's) earning capacity and no error has been committed in refusing to let the appellant (defendant) elicit a reply from the husband of appellee (plaintiff) as to what monthly payments he received from policies of insurance protecting his health. The court, in sustaining the objection of the appellee to the question to the witness, stated that while income was not admissible earning capacity was. It is to be noted that the appellant did not thereupon pursue his questions as to earning capacity any further although he would have been so permitted by the court.

Section 94 of the Constitution of 1890 of the State of Mississippi fully emancipates married women. The plaintiff (appellee) was a married woman, as shown by the proof.

Section 94, Constitution of 1890.

The above section of the Constitution abolished coverture with all of its incidents and disabilities.

Southworth v. Brownlow, 84 Miss. 405, 36 So. 522; section 1940, Code of 1930; Texas Pac. Ry. Co. v. Humble, 181 U.S. 56, 45 L.Ed. 747; Sandels Hill's Dig., par. 5641.

A married woman may recover from one who negligently injures her, damages for impairment of her ability to labor, independently of her husband's right to recover for her loss of time.

Colorado Springs Interurban Ry. Co. v. Nichols, 41 Colo. 272, 92 P. 691, 20 L.R.A. (N.S.), 215.

A study of the statutes in the jurisdictions holding that a married woman is not entitled to recover for damages to her earning capacity will show that in such jurisdictions married women are not completely emancipated as they are in Mississippi so that the ruling and holding of the court in Colorado Springs Interurban Ry. Co. v. Nichols, 41 Colo. 272, 92 P. 691, 20 L.R.A. (N.S.) 215, is a direct authority for the contention of appellee and consonant with the policy of the State of Mississippi as expressed in its statutes emancipating women from the disabilities of coverture existing under the common law.

Atlanta Street R.R. Co. v. Jacobs, 88 Ga. 647, 15 S.E. 825.

In Chicago M. Elec. R. Co. v. Krempel, 103 Ill. App. 1, it was said that the loss of a married woman's ability to work is a personal injury to her, which may affect her in many ways peculiar to herself.

20 L.R.A. (N.S.) 216; Cassidy v. Constantine, 168 N.E. 169, 66 A.L.R. 1186; 30 C.J., Husband and Wife, page 966, notes 65, 66 and 67; Koch v. Lynch, 247 Mass. 459, 141 N.E. 677; 17 C.J. 784; Atlanta v. Hampton, 139 Ga. 389, 77 S.E. 393.

In the instant case now before Your Honors the proof that Mrs. Smith had an earning capacity and that on account of her injury she was no longer able to exercise this earning capacity, was a proper matter for consideration by the jury, that this loss of capacity to labor which was occasioned by the Mississippi Central Railroad Company was in the nature of pain and suffering even though no pecuniary loss resulted.

The appellant has taken the position that it was reversible error in permitting the appellee to testify as to her earning capacity as a professional nurse, appellant basing its position on the proposition that loss of earnings as part of damages must be plead and it can only be recovered when the plaintiff is actually working outside the home. For the purpose of argument only admitting that this is true, nevertheless this avails the appellant nothing as the rule is not one of the right to recover loss of earnings but to recover for loss of earning capacity.

The testimony to which the appellant objects in his brief was not offered to or held admissible to allow a recovery for any loss of earnings but simply to show a loss of earning capacity, to measure the extent and severity of the injury which had been inflicted upon the appellee by appellant's locomotive, to show that the injury was so severe that all earning capacity had been taken away from appellee.

The distinction between the right to recover loss of earning and the right to recover for loss of earning capacity (which the appellant has confused) is clearly pointed out and explained in the case of Shea v. Rettie and Murphy v. Rettie, reported in 192 N.E. 44.

However, pursuing the subject further, the evidence itself was admissible without regard to loss of earning capacity. It was admissible solely for the purpose of showing the extent of the injury.

The evidence was a part of plaintiff's (appellee's) case which tended to show that prior to the accident in question the plaintiff was a woman of thirty-six years, in vigorous good health, very active, a "perfect specimen of womanhood," athletic, a horse-back rider, and capable of following very successfully professional nursing, which profession demanded a strong constitution and an active body, and was without any nervous disorders.

The jury would then be in a position to judge the physical condition of appellee at the time of the trial and better note the extent of the injury to appellee.

In view of section 1940 of the Code of 1930 of the State of Mississippi, and in view of the constitutional provision, section 94 of Mississippi, a married woman, even though not working outside the home, can recover for her existent but not used earning capacity because at any time that she chose she might and would have the right to make use of same.

20 L.R.A. (N.S.) 217; Colorado Springs Co. v. Nichols, 20 A.L.R. (N.S.) 215, 92 P. 691; 17 C.J. 872 and 1037.

Plaintiff was not seeking exemplary damages in this case, but merely compensatory damages. Therefore, the wealth or poverty of the plaintiff could not be considered in determining the amount of damages properly allowed.

Southern R.R. Co. v. McLellan, 80 Miss. 700, 32 So. 283; Wats. Dam., par. 620.

If a plaintiff cannot prove that she is in want upon the question of the amount of damages, it should be and is equally true that a defendant cannot prove that the plaintiff is not in want upon the same question. Therefore, the fact that the testimony of the earning capacity prior to the injury of appellee was allowed could not make testimony as to the financial condition or worth of the husband admissible; that the financial worth or condition of a party is never admissible and is never to be considered where no exemplary damages are being asked.

Shea v. Rettie and Murphy v. Rettie, 192 N.E. 44; Elmer v. Fessenden, 152 Mass. 427, 28 N.E. 299; Gray v. Boston Elevated Ry. Co., 215 Mass. 143, 102 N.E. 71; Geraty v. Kaufman, 115 Conn. 563, 162 A. 33; I.C.R.R. Co. v. Porter, 117 Tenn. 13, 94 S.W. 666, 10 Ann. Cas. 789; Campbell v. Sutliff, 193 Wis. 370, 214 N.W. 374, 53 A.L.R. 771; Cassity v. Constantine, 168 N.E. 169, 66 A.L.R. 1186.

Argued orally by H. Dean, for appellant.