Marshall v. Consolidated Jack Mines Co.

• Decision Date: 02 July 1906
• Citation: 119 Mo. App. 270,95 S.W. 972
• Parties: MARSHALL v. CONSOLIDATED JACK MINES CO.
• Court: Missouri Court of Appeals

95 S.W. 972

119 Mo. App. 270

MARSHALL v. CONSOLIDATED JACK MINES CO.

Kansas City Court of Appeals. Missouri.

July 2, 1906.

DEATH—ACTIONS FOR CAUSING DEATH—DAMAGES — ELEMENTS OF COMPENSATION — LOSS OF SOCIETY.

Under Rev. St. 1899, § 2865, authorizing an action for the death of a person caused by wrongful act, etc., and section 2866, providing that the jury may give such damages as they may deem fair and just with reference "to the necessary injuries resulting from" such death, the measure of damages in an action by a parent for the wrongful death of his minor son does not include loss of comfort and society of the son; the words "necessary injury" meaning "pecuniary injury," and confining damages to property loss.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Louis Marshall against the Consolidated Jack Mines Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

C. C. Spencer and A. E. Spencer, for appellant. H. C. Perrer and McAntire & Scott, for respondent.

ELLISON, J.

The plaintiff's minor son was killed while in the employ of the defendant. His death was charged to have been caused by the negligence of defendant in operating its mine in Jasper county, and plaintiff brought his action under sections 2865 and 2866, Rev. St. 1889, for damages. He recovered judgment in the trial court. The instructions authorized the jury to include as a part of plaintiff's damages his "loss of the comfort and society" of his son. The statute aforesaid governing the measure of damages in cases like this reads as follows: "All damages accruing under the last-preceding section shall be sued for and recovered by the same parties, and in the same manner as provided in section 2864, and in every such action the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default."

Defendant's objection to the instructions is that by including loss of the comfort and society of the deceased, a new and unauthorized element of damage is introduced into this class of cases. We think the objection is well made. It certainly has been the understanding of the bench and bar of this state that no such element of damage could be allowed. There are few questions upon which the ruling has been more consistent or more frequent; and until a remark in a case which we shall presently notice, we had never heard it doubted. The following adjudications, among others, ought to have put the matter at rest, and doubtless would have done so, but for what we regard as an inadvertent remark in the case to which we have just referred. Beginning in 1879, we have the follow decisions which condemn such measure of damages. Porter v. Railway Co., 71 Mo. 66, 81, 36 Am. Rep. 454; Rains v. Railway Co., 71 Mo. 164, 169, 36 Am. Rep. 459; Morgan v. Durfee, 69 Mo. 478, 33 Am. Rep. 508; Nagel v. Railway Co., 75 Mo. 653, 42 Am. Rep. 418; Stoher v. Railway Co., 91 Mo. 509, 4 S. W. 389; Parsons v. Railway Co., 94 Mo. 286, 6 S. W. 464; McPherson v. Railway Co., 97 Mo. 253, 259, 10 S. W. 846; Schaub v. Railway Co., 106 Mo. 74, 93, 16 S. W. 924; McGowan v. St. Louis Ore Co., 109 Mo. 518, 531, 19 S. W. 199; Leahy v. Davis, 121 Mo. 227, 25 S. W. 941; Behen v. Transit Co., 186 Mo. 430, 447, 85 S. W. 346. To these may be added the following from this court and the St. Louis Court of Appeals. Hickman v. Railway Co., 22 Mo. App. 344; Coleman v. Land Co., 105 Mo. App. 254, 272, 79 S. W. 981; Brunke v. Telephone Co., 112 Mo. App. 623, 87 S. W. 84. But in Sharp v. National Biscuit Co., 179 Mo. 553, 78 S. W. 787, there is the following statement made by Judge Marshall in the course of the opinion: "`The necessary injury' referred to in the statute may or may not include the net loss of services, but it also covers other injuries besides loss of services. It includes loss of the comfort, society, and love of the child. In this case the parents lost both and were entitled to compensation for both." That statement was not the point in judgment in that case. It was made upon the objection which the defendant in the case had made to an instruction on the measure of damages which directed the jury that the plaintiffs were entitled to what their son would have earned until he became 21 years old, minus the cost of his support, maintenance, and clothes. The judge held that whatever error was in the instruction was in defendant's favor for which it could not ask a reversal. To show why...