Clark v. Southwestern Greyhound Lines

• Decision Date: 03 July 1936
• Docket Number: 32979.
• Parties: CLARK v. SOUTHWESTERN GREYHOUND LINES et al.
• Court: Kansas Supreme Court

58 P.2d 1128

144 Kan. 344

CLARK v. SOUTHWESTERN GREYHOUND LINES et al.

No. 32979.

Supreme Court of Kansas

July 3, 1936

Syllabus by the Court.

Terms "services" and "domestic duties" within statute giving married woman sustaining injury sole right to sue for loss or impairment of ability to perform services in household and in discharge of domestic duties held to mean all benefits that accrue as result of conjugal relation, and hence husband could not maintain action for damages because of loss of companionship of wife who sustained injury (Rev.St.1923, 23-- 205).

In an action brought by a husband to recover damages on account of injuries to his wife, it is held that the terms "services" and "domestic duties," as used in R.S. 23--205, mean all the benefits that accrue as the result of the conjugal relation, such as society, comfort aid, assistance, or any other act that tends to make wedded life worth while; and, further, that the statute does not permit a distinction to be drawn between services a wife gives her husband and the companionship she affords him.

Appeal from District Court, Washington County; Tom Kennett, Judge.

Action by Anton Clark against the Southwestern Greyhound Lines and others. From a judgment for plaintiff, after overruling a general demurrer to the petition and overruling special demurrers and motions to strike, defendants appeal.

Reversed with directions.

T. M Lillard, O. B. Eidson, Phil Lewis, Robert Stone, James A McClure, Robert L. Webb, Beryl R. Johnson, Ralph Oman, Hugh C. Larimer, and J. C. Linge, all of Topeka, for appellants.

J. R Hyland and H. N. Hyland, both of Washington, Kan., Walter M. Kelly and Will Abbott Kelly, both of Chicago, Ill., for appellee.

SMITH Justice.

This was an action by a husband to recover damages in the aggregate of $15,000 for personal injuries alleged to have been sustained by his wife. Judgment was for plaintiff overruling a general demurrer to the petition and overruling special demurrers and motions to strike. Defendants appeal.

Plaintiff sought to recover $5,000 on account of medical expenses paid in the treatment of his wife and the sum of $10,000 on account of being deprived of her services and companionship.

The defendant Southwestern Greyhound Lines, Inc., filed a general demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action, and a special demurrer to that part of the petition which sought a recovery on account of the alleged loss of services and companionship by reason of injuries to the wife of plaintiff for the reason that the statute does not permit such a recovery by the husband. The trial court overruled the general demurrer and sustained the special demurrer only in so far as it related to the loss of services, holding that the plaintiff could maintain the action in so far as it related to the claim for loss of companionship.

The Cardinal Stage Lines Company, a corporation, filed the same sort of a special demurrer with the same results.

Defendants Bradley and Gardner filed a motion to strike from the petition the allegations with reference to the recovery of money for loss of services and companionship. This motion was sustained only as to striking out the amounts claimed for loss of services and overruled as to the amount claimed for loss of companionship.

Defendant Greyhound Lines appeals from the order overruling its special demurrer as to that portion of the plaintiff's petition which sought a recovery for loss of the wife's companionship. The Cardinal Stage Lines appeals from the same order. Bradley and Gardner appeal from the order overruling their motion to strike from the plaintiff's petition the allegations with respect to the plaintiff's right to recover for loss of his wife's companionship.

The plaintiff did not appeal from the order sustaining the special demurrers and motions to strike with reference to the allegations of the petition claiming the right of the husband to recover damages for the loss of his wife's services.

It will be seen that all the defendants raise the same question; that is, Can a husband maintain an action for damages on account of the loss of his wife's companionship?

The trouble arises over a construction of R.S. 23--205. That section is as follows:

"That where, through the wrong of another, a married woman shall sustain personal injuries causing the loss or impairment of her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in her, and any recovery therefor, so far as it is based upon the loss or impairment of her ability to perform services in the household and in the discharge of her domestic duties, shall be for the benefit of her husband so far as he shall be entitled thereto: Provided, however, That nothing herein shall in any way affect the right of the husband to recover damages for the wrongful death of his wife."

This is section 1 of chapter 177 of the Laws of 1921. This was enacted as a step in the emancipation of women. It takes one step in the movement away from the idea that a married woman had no legal existence apart from her...