Kaiser v. St. Louis Transit Company
| Decision Date | 13 December 1904 |
| Parties | KAISER, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
AFFIRMED.
Judgment affirmed.
Boyle Priest & Lehmann, George W. Easley and Glendy B. Arnold for appellant.
The wife and daughter, residing with plaintiff and part of his household and family, may have nursed plaintiff, but "such nursing involves no legal liability on his part and therefore affords no basis for a claim against defendant as for expenses paid." Voorhies on Damages, p. 29, sec. 18. Goodhart v. Railroad, 177 Pa. St. 191, 35 A. 192; Buelterman v. Meyer, 132 Mo. 474, 34 S.W. 67; Ratcliff v. Lumpee, 82 Mo.App. 335; Wood v. Flanery, 89 Mo.App. 632; Doan v. Dale, 90 Mo.App. 87.
A. R. Taylor for respondent.
This plaintiff got a verdict for injuries received in boarding one of the defendant's street cars by the premature starting of the car before he had obtained a secure footing in it. The physician who attended him testified as to the condition the plaintiff was in when last examined and that he was suffering then from a concussion of the spinal cord and brain. He was asked if it was a permanent injury and said he could not answer that question because he had not examined the patient lately. The physician stated the visible symptoms resulting from the injury to the spinal cord, chief of which was plaintiff's inability to bend or stoop. The physician was then asked what the plaintiff's chance of recovery was if that condition existed at the time of the trial. He answered that he thought there was not much chance for a complete recovery. The defendant objected and excepted to the question for the reason that the doctor had said already he could not predict as to the likelihood of a permanent injury, not having examined the plaintiff lately. Now the plaintiff himself testified that his condition at the time of the trial remained as it was when the doctor last examined him, and we think the hypothetical question as to the chance of recovery, if he was still in the same state, was a fair one.
During the confinement due to his injuries, plaintiff was nursed by his wife and widowed daughter who lived with him. The daughter was permitted to testify as to the reasonable value of the nursing, and this is assigned as error on the ground that the nurses were members of the household and of his family and, in the absence of an express contract to compensate them, their services are presumed to have been rendered gratuitously; therefore, the plaintiff could not recover their value as part of his damages. There is a conflict in the cases on this subject, and we find a decision in the Pennsylvania reports that nursing, under such circumstances, cannot be taken into consideration as an element of damages in an action by the injured party. Goodhart v. Railroad, 177 Pa. 1, 35 A. 191. But the weight of authority is the other way, and we have found the following decisions affirming the right of the injured party to recover the reasonable value of the nursing he received though it was from members of his family and rendered gratuitously. Brosnan v. Sweetser, 127 Ind. 1, 26 N.E. 555; Varnham v. Council Bluffs, 52 Iowa 698, 3 N.W. 792; Railroad v. Holman, 15 Tex. Civ. App. 16, 39 S.W. 130; Crouse v. Railroad, 102 Wis. 196, 78 N.W. 446; Copithorne v. Hardy, 173 Mass. 400, 53 N.E. 915. Joyce in his work on Damages says: "Although the services in nursing are gratuitously rendered by a member of the family, there may be a recovery of the fair value of the services and the value of the wife's services may be recovered;" citing in support of that text the cases we have cited above. 1 Joyce on Damages, sec. 256. In the same section the conflict of authority is noticed in these words: "In some cases, however, it has been held that in the absence of an express contract to pay for services of wife or child in nursing a person who has suffered a personal injury, there can be no recovery therefor," citing the Pennsylvania case and Railroad v. Johnson, 43 Ill.App. 83. The case of Trapnell v. Red Oak Junction, 76 Iowa 744, 39 N.W. 884, seems to sustain the right to recover such damages. The precise question was decided in this State in Murray v. Railroad, 101 Mo. 236, 13 S.W. 817. That plaintiff was permitted by the trial court to recover the reasonable value of the attention and nursing given to him by "ladies about the house," presumably relatives, the opinion says. The Supreme Court approved the ruling. The case was overruled in Cobb v. Railroad, 149 Mo. 609, 50 S.W. 894, but not on the point in hand. The point ruled to have been erroneously determined was that no expert proof of the reasonable value of services was necessary as the value was within the knowledge of men generally. In Smith v. St. Joseph, 55 Mo....
To continue reading
Request your trial