Berry v. City of Sedalia

• Decision Date: 10 May 1920
• Docket Number: No. 13582.,13582.
• Citation: 221 S.W. 757
• Parties: BERRY v. CITY OF SEDALIA
• Court: Missouri Court of Appeals

221 S.W. 757

BERRY v. CITY OF SEDALIA

No. 13582.

Kansas City Court of Appeals. Missouri.

May 10, 1920.

Appeal from Circuit Court, Pettis County; Hopkins B. Shain, Judge.

"Not to be officially published."

Action by C. G. Berry against the City of Sedalia. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

R. S. Robertson, of Sedalia, for appellant.

C. C. Kelly and Geo. W. Barnett, both of Sedalia, for respondent.

BLAND, J.

This is an action by the husband to recover for loss of the society and services of his wife, together with the doctor bills, medicine, etc., occasioned by her injury caused by his wife slipping and falling while crossing Third street in Sedalia, Mo., from north to south on the west side of Ohio avenue. There was a verdict and judgment in favor of plaintiff in the sum of $1,500, and defendant has appealed.

A judgment in favor of the wife in her case was affirmed by this court. Berry v. City of Sedalia, 201 Mo. App. 436, 212 S. W. 34. In plaintiff's instructions on the measure of damages, the court submitted to the jury the question of "the value of plaintiff's services, if any, in nursing his wife in sickness and feebleness resulting from said injury." There was no evidence as to the value of the husband's services, and defendant insists that it was error for the court to submit said item to the jury. This contention of the defendant is well taken. While it is true that the value of the wife's companionship, society, and services is not susceptible of definite proof, and therefore no definite proof need be made (Tandy v. St. Louis Transit Co., 178 Mo. 240, 247, 77 S. W. 994; Womach v. City of St. Joseph, 201 Mo. 467, 485, 486, 100 S. W. 443, 10 L. R. A. [N. S.] 140), there is no reason why this rule should apply to the value of the husband's services in nursing his wife, where he is seeking to recover the same. It is apparent that such services of the husband in nursing his wife is capable of definite ascertainment, because he, instead of performing the services himself, could hire some one else to perform them. There is no question but that he may recover the value of his services. Smith v. City of St. Joseph, 55 Mo. 456, 459, 17 At. Rep. 660; Blair v. C. & A. R. Co., 89 Mo. 334, 339, 1 S. W. 367. Yet as the value of such services is capable of definite ascertainment, the submission of the same to the jury without any proof as to their value was error. Wallack v. St. Louis Transit Co., 123 Mo. App. 160,...