Blair v. Chicago & A. Ry. Co.
| Decision Date | 21 June 1886 |
| Citation | 89 Mo. 334 |
| Court | Missouri Supreme Court |
| Parties | BLAIR v. CHICAGO & A. RY. CO. |
Appeal from Jackson circuit court.
Action by the husband to recover damages sustained by him in the loss of the services of his wife during the time she was disabled by personal injuries received while a passenger on board defendant's cars. Judgment for plaintiff, and appeal therefrom by defendant.L. H. Waters, for respondent, John Blair. Lathrop & Smith, for appellant, Chicago & A. Ry. Co.
The plaintiff brings this action for damages resulting to him by reason of injuries to his wife in consequences of a railroad accident, she being a passenger on defendant's cars, by reason of which he lost her services as milliner in conducting his millinery store, was compelled to occupy all his time in nursing and caring for her in her sickness induced by such injuries, and was compelled to pay out large sums of money for medicines, medical attendance, and for the employment of nurses for his wife, while suffering from such injuries. The accident in question is the same mentioned in Blair v. Chicago & A. Ry. Co., ante, 350, (decided at this term.)
1. It was competent for the husband and wife--for it seems that they both did so--to waive the protection of the statute, (section 4017,) and to allow her attending physician to testify as to statements made to him by her in reference to her sickness resulting from her injuries; and it has been ruled that, even though the patient be dead, those who represent him after his death may do the like for the protection of the interests they claim under him. Fraser v. Jennison, 42 Mich. 206; S. C. 3 N. W. Rep. 882. It is unnecessary to go so far in this instance. At the present term, where the wife was the meritorious cause of action, it was held that she might waive the statutory protection, and the right of waiving a privilege must be as broad as the privilege itself.
2. Contention is made that as the contract to carry the wife safely was made with the wife alone, and that as the failure to do so resulted in a tort growing out of that breach of contract, that she alone could recover for damages arising from such tort. I do not find any case which goes the length of holding that a husband, in such circumstances, cannot maintain a separate action in his own name for the loss of the services of his wife, and for any expense or loss consequent upon the injury thus received by the wife. The rule is the other way. This position is abundantly sustained by the authorities. 2 Rorer, R. R. 1093-1095; Fuller v. Railroad Co., 21 Conn. 557; McKinney v. Stage Co., 4 Iowa, 420; Cregin v. Railroad Co., 75 N. Y. 192; McDonald v. Railroad Co., 26 Iowa, 124; Hopkins v. Railroad Co., 36 N. H. 9; 2 Thomp. Neg. 1240, § 15; Filer v. Railroad Co., 49 N. Y. 47; Cooley, Torts, 226, 227, and cases cited. And in such cases it matters not that the injury arose as an incident or consequence of a breach of contract made with the wife, when the injury extends further, and invades rights which are personal to the husband, depriving him of her services, and compelling him to the expenditure of money on account of her injuries. The gravamen of such an action by the husband being a breach of duty by the common carrier, privity of contract is not essential. Any one sustaining damage by reason of such breach of duty may maintain his action therefor. In such case the tort does not spring from or arise out of a breach of contract, but the action lies “against the carrier on the custom of the realm.” Marshall v. York, etc., Ry. Co., 7 Eng. Law & Eq. 519; Max v. Roberts, 12 East, 89; Ansell v. Waterhouse, 18 E. C. L. Rep. 469; Bliss, Code Pl. § 14; Ames v. Railway Co., 117 Mass. 541. The action is bottomed on a violation of a public duty,--a duty which the law...
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