Nichols v. Nichols

• Decision Date: 23 December 1898
• Citation: 48 S.W. 947,147 Mo. 387
• Parties: Nichols v. Nichols et al., Appellants
• Court: Missouri Supreme Court

48 S.W. 947

147 Mo. 387

Nichols v. Nichols et al., Appellants

Supreme Court of Missouri, First Division

December 23, 1898 ^[*]

Rehearing Granted 147 Mo. 387 at 407.

Appeal from Vernon Circuit Court. -- Hon. D. P. Stratton, Judge.

Affirmed.

Tucker & Moore and Thurman & Wray for appellants.

(1) The right of a wife to maintain an action for the loss of the consortium of her husband did not exist at common law, and its existence is only recognized in this State by virtue of the recent legislation giving the wife a separate legal existence. Clow v. Chapman, 125 Mo. 101; Nichols v. Nichols, 134 Mo. 187. (2) The loss of society alone is not a right which constitutes within itself an element of damage. First of all there must be the loss of affection. Calloway v. Laydom, 47 Ia. 456; Logan v Logan, 77 Ind. 559; Freese v. Tripp, 70 Ill 503; Confrey v. Stark, 73 Ill. 187. The loss of the husband's affections must of necessity constitute the basis of her right to maintain this action against third parties, and recover for the loss of "society, comfort, companionship, protection and aid," they being only the ordinary and legitimate results of the loss of affections, as pain and suffering is the result of personal injury. Reinhart v. Bills, 82 Mo. 534. (4) The wife has no right of action against a third party for the false imprisonment of the husband, for any kind of personal injury to the husband which does not result in death, although it disables him from maintaining and protecting her. Or for any sort of injury to his person or property, although it may deprive her of his "society, comfort, companionship, protection and aid." 9 Am. and Eng. Ency. of Law, 832; Logan v. Logan, 77 Ind. 538; McNamara v. Slavens, 76 Mo. 329; Gibbs v. Hannibal, 82 Mo. 143; Baker v. Railroad, 91 Mo. 94. (5) A demurrer ought to have been sustained to plaintiff's case. There is no substantial evidence in this record tending to prove defendants, or either of them, were guilty of any intended malicious act, or of any act that deprived plaintiff of her husband's affections, companionship and aid. It devolved upon the plaintiff to show that the defendants did some act or were guilty of speaking some word which poisoned the mind of plaintiff's husband against her so as to bring about the results charged in her petition. Lynch v. Knight, 9 H. L. 577; Mehrhoff v. Mehrhoff, 26 F. 13; Modisett v. McPike, 74 Mo. 647; Hutchison v. Peak, 5 Johns. 195; Bennett v. Smith, 21 Barb. 439; Pollock v. Pollock, 29 N.Y.S. 37; Reed v. Reed, 6 Ind.App. 317; Young v. Young, 8 Wash. 81; Van-Olinda v. Hall, 34 N.Y.S. 777. (6) No action will lie when the cause of action did not exist at the time the suit was commenced. Jennings v. Zerr & Jennings, 48 Mo.App. 528; Weinwick v. Bender, 33 Mo. 80; McDowell Co. v. Morgan, 33 Mo. 555; Tobin v. McCann, 17 Mo.App. 481; Worth v. Springfield, 22 Mo.App. 12; Heard v. Ritchey, 112 Mo. 516; Turk v. Stahl, 53 Mo. 437; Duryee v. Turner, 20 Mo.App. 34. (7) If the plaintiff at the time of bringing this suit was in possession of her husband's affections, and the testimony shows she was, then a union with her husband would have restored her to his society, comfort, companionship and all the protection and aid he as such husband could give her. So that she could not recover for such injury subsequent to the date of the filing of her petition, and defendants' instruction number 15, limiting her right of recovery to the commencement of the suit, ought to have been given. Carson v. Springfield, 48 Mo.App. 296; Puney v. Berry, 61 Mo. 359; Brown v. Railroad, 80 Mo. 457; Ross v. Kansas City, 48 Mo.App. 440; Biglow v. Railroad, 48 Mo.App. 368. (8) A husband is not liable for the torts of his wife committed out of his presence and without his consent. The modern legislation of this State has so changed the legal status of a married woman as to make her the legal entity, the owner in her own right of all her property, and to allow her to sue and be sued as a feme sole so that the reason of the rule at common law has ceased to exist and, therefore, the rule itself has become a "barren technicality" and therefore abrogated. 2 Bish. Mar. Women, secs. 254, 255, 256, 267, 268 and 269; Rowe v. Smith, 45 N.Y. 230; Quilty v. Battie, 135 N.Y. 201; Fitzgerald v. Quann, 17 N.E. 354; R. S. 1889, secs. 6864, 6868 and 6869; Arnold v. Willis, 128 Mo. 145; Clow v. Chapman, 125 Mo. 107; Lane v. Bryant, 37 S.W. 584; Norris v. Cockrill, 32 Kan. 409; Vocht v. Kuklence, 119 Pa. St. 365.

Cole & Burnett and Timmonds & Timmonds for respondent.

(1) The plaintiff was entitled to recover for this unwarranted invasion of her marital and personal rights. Clow v. Chapman, 125 Mo. 101; Nichols v. Nichols, 134 Mo. 187; Rice v. Rice, 62 N.W. 833; Williams v. Williams, 37 P. 614; Hodgkinson v. Hodgkinson, 43 Neb. 269; Bailey v. Bailey, 63 N.W. 341; Price v. Price, 60 N.W. 202; Cooley on Torts, 153; Bigelow on Torts, p. 227; Bishop, Mar. and Div., secs. 1358 and 1374; 31 Cent. Law Journal, pp. 23 and 241; Bennett v. Bennett, 116 N.Y. 584; Jaynes v. Jaynes, 39 Hun. 40. (2) Appellants seem to rely upon the fact that loss of affection is necessary to maintain an action of this kind; in this they are mistaken. The action is based upon the loss of companionship and society. Clow v. Chapman, 125 Mo. 103; Bigaonette v. Paulet, 134 Mass. 125; Warren v. Warren, 50 N.W. 842; Lockwood v. Lockwood, 70 N.W. 784; Westlake v. Westlake, 34 Ohio St. 621; Modisett v. McPike, 74 Mo. 639. (3) The financial condition of both plaintiff and defendant may be shown, when there are circumstances of oppression or malice and where exemplary damages are allowable. Beck v. Dowell, 111 Mo. 506; Buckley v. Knapp, 48 Mo. 152. (4) It does not lie in the mouth of defendants to complain of plaintiff's testimony as to the meetings and conversations between her and her husband, especially when the record shows these facts to have been brought out on cross-examination by defendants' counsel. However, under the following authorities such testimony would be competent anyhow. Williams v. Williams, 37 P. 614; Glass v. Bennett, 89 Tenn. 478; Holtz v. Dick, 42 Ohio St. 23; Edgell v. Francis, 66 Mich. 303. (5) The common law liability of a husband for the torts of his wife has not been abrogated by the Married Women's Act of this State. Flesh v. Lindsay, 115 Mo. 1; Wirt v. Dinan, 44 Mo.App. 583; Ingelfritz v. Ingelfritz, 49 Mo.App. 475; McCorkle v. Goldsmith, 60 Mo.App. 475; Plummer v. City of Milan, 70 Mo.App. 598; Lindell Real Estate Co. v. Lindell, 142 Mo. 78; Thompson v. Street Railway, 135 Mo. 217; Bains v. Bullock, 129 Mo. 119; Russell v. Russell, 122 Mo. 236; Brown v. Dressler, 125 Mo. 590; Gabriel v. Mullen, 111 Mo. 119; State v. MaFoo, 110 Mo. 7; Crawford v. Whitmore, 120 Mo. 144; Luse v. Oaks, 36 Iowa 562; Fitzgerald v. Quann, 109 N.Y. 441; McElfresh v. Kirkendall, 36 Iowa 224; Ferguson v. Brooks, 67 Mo. 251; Knowing v. Morley, 57 Barb. 479; McQueen v. Fulgham, 27 Tex. 463; Fowler v. Chichester, 26 Ohio St. 9; Perkins v. Perkins, 62 Barb. 531; White v. Woger, 25 N.Y. 333; Morgan v. Kennedy, 64 N.W. 912.

OPINION

BRACE, P. J.

The defendants are husband and wife. This is an action by the plaintiff against them to recover damages for wrongfully inducing her husband George Nichols, who is the only son of the defendants, to abandon her, and to live separate and apart from her, thereby depriving her of his affection, companionship, society, protection and support, in which the plaintiff obtained judgment in the circuit court for $ 5,000.50, and the defendants appeal. The case has been here before on plaintiff's appeal from a judgment of the circuit court sustaining a demurrer to the petition, on which appeal the petition was held sufficient by this court, the judgment reversed and the cause remanded for trial. See Nichols v. Nichols, 134 Mo. 187, 35 S.W. 577, where the petition is set out in haec verba. After the cause was remanded the defendants filed separate answers to the petition, in each of which the relationship of the parties is admitted, and all the other material allegations of the petition are denied, and upon the issues thus joined the case was submitted by the court to the jury upon the following instructions, omitting those not bearing directly upon the issue, after refusing to give twenty instructions asked for by the defendants.

Instructions for plaintiff:

"3. A wife is entitled to the society, companionship, comfort protection and aid of her husband. The law gives her a right of action against any person who willfully and maliciously entices, persuades, induces or influences her husband to separate or remain apart from her. Therefore, if you shall believe from the evidence that the defendants willfully and maliciously acted in concert or cooperated together with the purpose and intent to cause the separation of the plaintiff's husband from her and to cause him to remain apart from her, and that they did thereby accomplish such purpose and intent, then your verdict shall be in favor of the plaintiff, and you should assess her damages at such sum as you may believe from the evidence will reasonably compensate her for the deprivation and loss of her husband's society, comfort, companionship, protection and aid -- provided your verdict should not exceed the sum of ten thousand dollars.

"4. The law does not justify or excuse parents in willfully and maliciously interfering in the domestic affairs of their married children; therefore, although you may believe from the evidence that the defendants are the parents of plaintiff's husband, still if you shall further believe from the evidence that they are guilty of procuring or bringing about the separation of plaintiff's husband from her and causing him to remain...