McLean v. Kansas City
| Decision Date | 08 June 1903 |
| Citation | 75 S.W. 173,100 Mo.App. 625 |
| Parties | ELLA A. McLEAN, Admr'x, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. John W. Henry, Judge.
Judgment affirmed.
R. J Ingraham and J. J. Williams for appellant.
(1) Plaintiff's instruction No. 1 assumes that Mrs. McLean was thrown down and injured on the walk. It submits the question whether the board gave way, but assumes that Mrs McLean was thereby thrown down and injured. That was in issue under the pleadings. The same fault exists in plaintiff's instructions No. 2 and No. 3. (2) Instruction No. 1 is further misleading, because it allows the jury to find for plaintiff if he "was deprived of her [Mrs. McLean's] services." It is only for her "household" services that recovery could be had in this case. James v. Christy, 18 Mo. 163. (3) The objection to the introduction of any evidence should have been sustained. The failure to allege in the petition that defendant had a reasonable time to repair was fatal. Until such opportunity the city is not liable. Baustian v. Young, 152 Mo. 325; Richardson v. Marceline, 73 Mo.App. 365.
W. H. Wallace, T. B. Wallace and W. C. Coulbertson for respondent.
(1) Even if the instructions had assumed the fact, it would not have been an error because as to this fact there was no dispute or controversy in the case. Bank v. Hatch, 98 Mo. 377; Dickson v. Railroad, 104 Mo. 491; Field v. Railroad, 80 Mo. 203; Walker v. City of Kansas, 99 Mo. 647. (2) The first instruction is not erroneous in requiring the jury to find as a condition of recovery that Robert McLean was, by reason of the injuries to Mrs. McLean, compelled to expend or become liable to pay out money for her care, nursing or medical treatment, or was deprived of her services. The instruction on the measure of the damages (and they must all be read together) defined these services as "the services of his wife in the performance of her household work and duties," and limited the recovery to their reasonable value. This satisfies the contention of the appellant on this point. The instructions limited the recovery to loss of services as distinguished from loss of companionship and society. See James v. Christy, 18 Mo. 163, cited by appellant. (3) Nor did the court err in overruling the objection to the introduction of any evidence under the petition. The question raised by this objection is whether the petition states a cause of action. An objection to the introduction of any evidence under the petition is good only in a case where the petition wholly fails to state a cause of action and where a motion in arrest of judgment will for the same reason be sustained. Grove v. Kansas City, 75 Mo. 675; Roberts v. Walker, 82 Mo. 206; Donaldson v. Butler County, 98 Mo. 166; Young v. Iron Company, 103 Mo. 324.
Plaintiff was injured on one of defendant's sidewalks in consequence of such walk being negligently permitted to become and remain in a state of decay and unsafety. She brought her action for damages against defendant and recovered. 81 Mo.App. 72. The present action was begun by the husband for loss of service. He having died, she as administratrix was made plaintiff and recovered in the trial court.
There are but two objections advanced against the judgment. One that the petition does not state a cause of action, and the other that the instructions were erroneous in assuming matters in controversy. Neither of them is well taken. A fair and reasonable interpretation of the instructions, as framed by plaintiff, does not disclose that any issuable matter was assumed. The matter said to be assumed was that plaintiff's wife was thrown down and...
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