Furnish v. Missouri Pac. Ry. Co.

• Decision Date: 02 February 1891
• Citation: 15 S.W. 315,102 Mo. 669
• Parties: FURNISH v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

15 S.W. 315

102 Mo. 669

FURNISH v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

February 2, 1891.

DAMAGES — INJURIES TO WIFE — EXCESSIVE VERDICT.

1. In a suit by a husband for personal injuries to his wife, he is entitled to recover for the loss of her society and companionship, though he yet has his wife with him, and enjoys her society; the loss being in the diminution in her capacity for usefulness, aid, and comfort as a wife.

2. The nature of the subject does not admit of direct proof of value, and, when the loss of society is established, the assessment of damages must be left to the sound discretion of the jury.

3. The plaintiff's wife was 52 years old, and had enjoyed good health before the accident. He paid out $857 for medical attendance and nursing, and for some time was in constant attendance on her. She was confined to her bed for seven months, and required his care one-half the time by day, and he was frequently obliged to sit up with her at night. She has been unable to walk since the accident, and, in the opinion of her physician, will not be able to do so for four or five years. Held, that a verdict for $5,000 should not be disturbed.

Appeal from circuit court, Bates county; D. A. DE ARMOND, Judge.

This action was brought by William S. Furnish to recover damages sustained by him in the matter of expenses incurred in medical attention and nursing, and in being deprived of the companionship, comfort, solace, and society of his wife, who sustained injuries while a passenger on one of appellant's cars. It appeared that in February, 1886, she took passage on an accommodation train, consisting of a locomotive and tender, a baggage-car, and two passenger cars, at Independence, Mo., to go to Kansas City; that, when the train arrived within a mile and a half of Kansas City, the locomotive and all the cars ran off the track on an embankment, and after leaving the rails the train tipped over, and "rested upon its side." Plaintiff's evidence tended to prove that at the point where the locomotive left the track a number of ties were broken off and splintered; that some were decayed and rotten; and that the tire of one of the drive-wheels, which had shortly before the accident been replaced thereon, was three-eighths of an inch thicker than the one on the companion drive-wheel, and that the difference in thickness had been called to the attention of appellant's assistant master mechanic, while the locomotive was in the repair-shop, shortly before the accident; that the south rail, at the point where the locomotive ran off the track, was bent inwardly towards the north rail, with both of the ends attached to the other rails. The defendant's evidence tended in some particulars to contradict that of plaintiff concerning the condition of the track and on other points. The evidence as to the injury to Mrs. Furnish was that, after the car in which she was riding was derailed, she was found lying in the top of the car, with her feet through a window, and a cushion across her face; that she was taken out of the wreck, placed upon some cushions, and was taken to an hotel in Kansas City, where she remained for 25 days. The nature and duration of her ensuing illness was described in this case substantially as in the action brought on her behalf, and previously reported in 13 S. W. Rep. 1044. It appeared, among other facts, that Mrs. Furnish was about 52 years old, and had enjoyed good health before the accident; that plaintiff spent $857 in actual outlays for medical services, hotel bills, etc., in consequence of it, and for some time was in constant attendance upon her; that she could not be removed to her home until 23 days after the injury, and was taken there then with difficulty, and was confined to her bed for 7 months, and required plaintiff's care one-half the time by day, and that he was obliged to sit up with her frequently at night; that since the accident she had been unable to attend to any household duties, and was yet unable to walk at the time of the trial, and, in the opinion of her physician, probably would not be able to walk for 4 or 5 years. Upon the issue of defendant's alleged negligence the court instructed the jury to the same effect, in all substantial particulars, as in the former case of Furnish v. Railway Co., ___ Mo. ___, 13 S. W. Rep. 1044. On the question of the amount of the recovery the court gave these instructions: "No. 9. The jury are instructed that,...