Fourcade v. Kansas City

• Decision Date: 24 May 1937
• Docket Number: No. 18876.,18876.
• Parties: FOURCADE v. KANSAS CITY.
• Court: Missouri Court of Appeals

107 S.W.2d 953

FOURCADE v. KANSAS CITY.

No. 18876.

Kansas City Court of Appeals. Missouri.

May 24, 1937.

Rehearing Denied June 14, 1937.

Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.

Action by Don Fourcade against the City of Kansas City. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

George Kingsley and John J. Cosgrove, both of Kansas City, for appellant.

Price Wickersham, of Kansas City, for respondent.

SHAIN, Presiding Judge.

In this action plaintiff sues for damages for injury alleged as sustained to his wife by reason of alleged defect in the sidewalk on one of the public streets of the defendant city.

In this appeal there is no question raised as to incorporation, and in so far as this review is concerned the negligence of defendant is admitted, and the fact that defendant's wife received such injury as she did receive as a direct result of the alleged negligence also stands admitted.

The trial was by jury and resulted in a verdict for plaintiff in the sum of $7,500. Judgment was duly entered for said amount, and defendant duly appealed from said judgment.

The appellant assigns error as follows:

"I. The court erred in giving Instruction No. 1, for the reason said instruction failed to submit to the jury an essential element of plaintiff's case, to-wit: it does not submit whether or not plaintiff, the husband, was damaged as a result of his wife's injuries; it submits the issue only of the wife's injuries and directs a recovery for the plaintiff if the jury should find that the wife was injured.

"II. The court erred in giving Plaintiff's Instruction No. 3, for the reason:

"(A) Said instruction lays improper emphasis upon the injuries sustained by plaintiff's wife and does not clearly submit the issue of what injury, if any, plaintiff sustained as the result of the injuries to his wife.

"(B) Instruction No. 3 directs the jury, in arriving at the measure of damages, to consider items of expense for medicines incurred by plaintiff. There is evidence that plaintiff incurred expense for medicine but there is no evidence as to the amount of money expended for medicine.

"(C) Instruction No. 3 authorizes the jury to take into consideration plaintiff's expense for surgical treatment of his wife. There is no evidence that his wife received surgical treatment separate and apart from medical treatment, and there is no evidence as to the amount of expense incurred by plaintiff for such surgical treatment.

"III. The court erred in refusing Instruction Lettered G offered by the defendant, for the reason that there was evidence on behalf of the defendant to the effect that plaintiff's wife was suffering from arthritis, a disease caused by infection, and that this arthritis was the cause of at least a portion of the disability suffered by plaintiff's wife.

"IV. The verdict is excessive."

Opinion.

For the purpose of review of appellant's point No. 1, it will suffice to state that the wife of plaintiff was injured by reason of a fall occasioned by the negligence of the respondent in permitting to remain in the sidewalk a defective lid over a manhole, and that this is a suit by the husband and only involves such damages as are shown to have accrued to the husband as a result of his wife's injuries.

Instruction No. 1, complained of, purports to cover the whole case and directs the jury to find for plaintiff if the jury finds from the evidence that the facts set forth in the instruction be true.

We have carefully read instruction No. 1, and nowhere therein is there any requirement for a finding by the jury of the elements necessary to be found with respect to the husband's injury and damage.

In case of injury to the wife there are two separate and independent causes of action. In an action by the husband he must recover, if at all, on the right of action that exists in his favor, and not upon the right of action that exists in favor of his wife.

Instruction No. 1, complained of, might be held to be a proper instruction for a cause of action by the wife. However, the instruction is in error as given as an instruction for the husband. Alexander v. Kansas City Rys. Co. (Mo.App.) 231 S.W. 66; Hopkins v. Mobile & O. R. Co. (Mo. App.) 33 S.W.(2d) 1009, loc.cit. 1010.

Respondent contends that the question raised by assignment one was not controverted in the trial. On this point the opinion in Hopkins v. Mobile & O. R. Co., supra, says: "Respondent insists, however, that this is not reversible error, because it is not error to assume an uncontroverted fact in an instruction, and that defendant did not controvert the fact that plaintiff suffered injuries personal to himself on account of the injuries of his wife. We subscribe to this general rule, that it is not error to assume an uncontroverted fact in an instruction. But this instruction does not assume anything. It merely directs a verdict for plaintiff, if his wife was injured, and the instruction contains no language with reference to plaintiff's right to recover on account of his own injuries, which may be construed as an assumption."

Respondent contends that error in instruction No. 1, if any, is cured when read in connection with instruction No. 3.

Instruction No. 3 is as follows:

"The court instructs the jury that the plaintiff, Don Fourcade, was entitled to the society, health, strength and usefulness of his wife, Anna Fourcade, unimpaired by injury as the result of negligence, if any, of the defendant and that the law does not furnish us any exact standard by which to measure the value of plaintiff's said wife's society. You are therefor instructed that if your verdict is for the plaintiff, Don Fourcade, and you find that prior to her injury, if any, his said wife, Anna Fourcade, was a strong, healthy, ablebodied woman, then in estimating and determining his damages, if any, the jury will take into consideration the nature and extent of the injury, if any, sustained by his said wife, Anna Fourcade, which you find and believe from the evidence to be the direct result of the negligence, if any, of the defendant, as submitted to you in other instruction herein; whether or not such injuries, if any, are permanent; any impairment, if any, of her ability to work and assist plaintiff; any expense, if any, which the jury shall find and believe from the evidence plaintiff has necessarily incurred as a direct result of such injuries, if any, for necessary medicines, medical and surgical treatment; and you are further instructed that the value of the society, aid and affection of Mrs. Fourcade to her husband, plaintiff herein, must be left to the enlightened judgment of the jury.

"By the term `society' as here used is meant such capacity for usefulness, aid and comfort as the wife possessed at the time of her injury, if any, and your entire award, if any, should be stated in one sum." (Italics ours.)

It will be noted, appellant's assignment No. 2, that error is claimed as to instruction No. 3.

We conclude that instruction No. 3 is subject to criticism, in that in many court opinions the standard by which to measure damages in such a case as this has been defined by approved instructions that guide the jury in the assessment of damages peculiar to action by husband for injury to his wife. Partello v. Missouri Pac. Ry. Co., 141 Mo.App. 162, 107 S.W. 473; Homan v. Missouri Pac. R. Co., 335 Mo. 30, 70 S.W.(2d) 869.

The respondent pleaded specific elements of damages, to wit, loss of services and consortium of the marital relation and of wife's society, aid, and affection present and future, and further alleges past, present, and future expenses for medicine, medical and surgical treatment.

In the italicized portion of the instruction above set forth, it will be noted that the jury are told that in estimating the damage they must take into consideration the nature and extent of injury sustained which was the direct result of appellant's negligence.

While the above language may not constitute a misdirection, still there is some confusion in the context that might cause the jury to base its verdict upon injury recoverable for in a suit by the wife but not recoverable for a suit by the husband. However, as said instruction does not purport to cover the whole case, and as the above language is followed later by the words, "which the jury shall find and believe from the evidence plaintiff has necessarily incurred as a direct result of such injuries, if any," we conclude that instruction No. 3 does not necessarily constitute reversible error. Having so concluded, we will proceed with respondent's contention that instruction 1, when read together with instruction 3, does not present reversible error.

When an instruction purports to cover the whole case and directs the jury to find for plaintiff upon finding of facts set forth in the instruction and it is shown that material facts necessary to a recovery are not included in the instruction, such constitutes an error by misdirection, and we have always understood the law to be that such constituted reversible error that could not be cured by the omitted material facts being included in other instructions.

There is cited herein, by the respondent, Pandjiris v. Oliver Cadillac Co. (Mo.Sup.) 98 S.W.(2d) 978, 979. In this opinion of Division No. 1 of the Supreme Court, there are expressions which, if followed, overthrow the generally accepted doctrine of error of misdirection in instructions to a jury, and overrule Hopkins v. Mobile & O. R. Co. (Mo.App.) 33 S.W. (2d) 1009, and a long line of decisions by the Supreme and appellate courts of this state.

The Pandjiris Case, supra, is an action by the husband for injury to his wife. In the course of the opinion it is said: "Plaintiff's instruction No. 1 hypothesized all the elements which prima facie showed defendant's negligence and liability for the casualty which produced plaintiff's injury, and upon the jury's...