Elliott v. Kansas City

• Decision Date: 31 March 1908
• Parties: ELLIOTT et al. v. KANSAS CITY.
• Court: Missouri Supreme Court

109 S.W. 627

210 Mo. 576

ELLIOTT et al. v. KANSAS CITY.

Supreme Court of Missouri, Division No. 2.

March 31, 1908.

1. ABATEMENT AND REVIVAL — DEATH OF PLAINTIFF — ACTION BY WIFE — SURVIVAL OF HUSBAND.

Rev. St. 1899, § 96 (Ann. St. 1906, p. 369), provides that for all wrongs done the property rights or interests of another, for which an action may be maintained against the wrongdoer, an action may be brought by the person injured, or, after his death, by his executor, etc., and section 97 (page 370) provides that the preceding section shall not apply to actions on the case for injuries to the person of plaintiff, etc. Plaintiff's wife was injured by falling on a defective sidewalk, and brought an action in which plaintiff joined, and on his wife's death plaintiff attempted to continue the action. Held that, under the statute, which is only declaratory of the common law, the cause of action did not survive the wife's death.

2. HUSBAND AND WIFE — ACTIONS — RIGHT OF ACTION BY EACH — PERSONAL INJURIES TO WIFE.

Upon the injury of plaintiff's wife by defendant's negligence, two independent rights of action accrued; one in favor of the husband for loss of the services and society of his wife, and for expenses necessarily incurred, and the other in favor of the wife for the injuries to her person, for her suffering, etc., and for expenses incurred by her.

3. SAME — PARTIES — NECESSARY PARTIES — JOINDER OF HUSBAND — NECESSITY.

Under Rev. St. 1899, § 4340 (Ann. St. 1906, p. 2382), providing that any personal property, including rights of action accruing from a violation of a wife's personal rights, which may have come to her during coverture, shall be under her sole control, and she may, in her own name, institute any such action without joining her husband, in an action for personal injuries to the wife the husband is not a necessary party, and could not maintain such action during the wife's lifetime, and the wife might have sued alone.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Mollie Elliott and Charles L. Elliott against Kansas City. From an order sustaining a motion to dismiss and abate the action, Charles L. Elliott appeals. Affirmed.

See 96 S. W. 1023.

L. A. Laughlin, for appellant. E. C. Meservey and W. H. H. Piatt, for respondent.

BURGESS, J.

This is an appeal from a judgment holding that an action for personal injuries does not survive plaintiff's death. Plaintiff Mollie Elliott, a married woman, on September 15, 1898, brought action in the circuit court of Jackson county against the defendant for damages for personal injuries caused by a fall on a defective sidewalk in defendant city, the trial resulting in a judgment for $500 in her favor. The plaintiff brought this judgment on a writ of error to this court, where it was reversed and the cause remanded. 174 Mo. 554, 74 S. W. 617. On June 9, 1903, an amended petition was filed in said circuit court by Mollie Elliott and Charles L. Elliott, her husband, and the cause was transferred by change of venue to the circuit court of Lafayette county, where, on April 25, 1904, plaintiff recovered judgment against the defendant for $8,000. Defendant appealed to this court, and on October 17, 1906, this second judgment was reversed and the cause remanded. 198 Mo. 593, 96 S. W. 1023, 6 L. R. A. (N. S.) 1082. During the pendency of the appeal, and on the 14th day of August, 1904, Mollie Elliott died from the effects, as counsel claims, of the injuries caused by her fall on the sidewalk. The mandate of this court was filed in the office of the clerk of the Lafayette circuit court on October 30, 1906. At the April term, 1907, of said circuit court the defendant filed its motions to dismiss and abate the cause on account of the death of Mrs. Elliott, and plaintiff Charles L. Elliott filed his motion for leave to file an amended and supplemental petition. At the August term, 1907, of said court the motion of plaintiff Charles L. Elliott was overruled, and the motions filed by defendant to dismiss and abate the cause were sustained, and the court rendered judgment abating the cause. From this judgment, plaintiff Charles L. Elliott appeals.

The question before us for decision is as to whether this action for personal injuries by Mollie Elliott, in which her husband, Charles L. Elliott, was joined with her, survived to him upon her death during the pendency of the suit. That such an action, in the absence of statutory provision, does not survive is, we think, well-settled law. Section 96, Rev. St. 1899 (Ann. St. 1906, p. 369), provides that "for all wrongs done to property, rights or interests of another, for which an action may be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects as actions founded upon contract." Section 97 (page 370)...