Keller v. City of St. Louis

• Decision Date: 12 December 1899
• Citation: 54 S.W. 438,152 Mo. 596
• Parties: KELLER v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

54 S.W. 438

152 Mo. 596

KELLER v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

December 12, 1899.

DIVORCE — SUPPORT OF CHILDREN — ACTION FOR LOSS OF SERVICES.

A divorce in which the "care and custody" of a child were decreed to the wife, without charging its maintenance to either spouse, does not change the duty of support from the husband to the wife; and hence she was not entitled to maintain an action for loss of the child's services, occasioned by his negligent injury.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by Nicolina Keller against the city of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed.

B. Schnurmacher and Charles C. Allen, for appellant. Seneca N. Taylor, Charles Erd, and William Bush, for respondent.

BRACE, P. J.

In this action the plaintiff seeks to recover damages for injuries to her minor son, Arthur Lauer, caused by the collision of a wagon in which he was riding with a sewer manhole in one of the streets of the city, which projected above the surface of the street. In the trial court the plaintiff obtained judgment for $225, and the defendant appeals.

At the time the suit was brought the father of the said Arthur was living, but he and his wife, the plaintiff, had been previously divorced, and the custody of the child awarded to the plaintiff by the decree. The only question presented for our determination is whether, in such case, the divorced wife can maintain the action. That while both parents are living the duty of maintaining their minor children rests upon the father, that upon his death this duty is cast upon the mother, and that out of this duty arises the right of the parent to the services of the children during their years of minority, and to maintain an action therefor, or for an injury to the minor, per quod servitium amisit, may be conceded as established law, and are not disputed in this case. And, if the father had been dead when this action was instituted, there could be no question of plaintiff's right to maintain the action. But, being alive, the right of action was in him, unless the effect of the divorce was to deprive him of such right, and confer it upon the plaintiff. The statute provides that, "when a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children or any of them, as from the circumstances of the parties and the nature of the case, shall be reasonable. * * *" Rev. St. 1889, § 4505. Divorce, as known to our law, is the creature of statute, and the power the court has over the rights and liabilities of the husband and wife is to be measured by the terms of the statute. In the decree in this instance no order was made "touching the maintenance of the children." The order made was limited to the "care and custody" of the children, which were awarded to the plaintiff. So far as this...