Riggs v. Metcalf, 46439
| Citation | 315 S.W.2d 791 |
| Decision Date | 08 September 1958 |
| Docket Number | No. 46439,No. 1,46439,1 |
| Parties | Donna D. RIGGS and Jack W. Riggs, Respondents, v. John E. METCALF, Appellant |
| Court | Missouri Supreme Court |
Rex Titus, A. L. Shortridge, Joplin, for appellant.
Bond, Bond & Buehner, Joplin, for respondents.
Action for damages sustained in a collision of automobiles in Joplin, Missouri. Verdict and judgment were for plaintiffs, to wit, for Donna Riggs on the first court for $20,000 (personal injuries) and for Jack W. Riggs, husband of Donna Riggs $2,500 on the second count (loss of services, etc.) and (by agreement of parties) for Jack W. Riggs for $80 (property damages) on the third count. Defendant has appealed.
About 5:00 p.m., on January 6, 1956, plaintiff Donna Riggs was driving her husband's 1955 Ford station wagon south on Main street between Ninth and Tenth streets in Joplin, in heavy traffic and had stopped 5 feet to the rear of another southbound automobile near the Ninth street intersection. Another automobile, referred to as the Perry automobile, was stopped 3 to 5 feet behind the Riggs' station wagon and, after some 10-20 seconds, the automobile ahead of Donna began to move and she started forward at about two miles per hour when defendant's automobile collided with the rear of the Perry automobile and drove it forward into the rear of the Riggs' station wagon and plaintiff Donna sustained a whiplash injury to her neek and other injuries. At the close of all the evidence the court directed verdicts for plaintiffs on the issue of liability.
Defendant-appellant contends the verdicts and judgments rendered on counts I and II are grossly excessive and not justified by any competent and substantial evidence; and that the court erred in giving Instruction No. 1 and in refusing Instruction No. 6. No authorities are cited in support of either of the last two assignments. We shall consider the last assignment first. The effect of Instruction No. 6 was to withdraw from the jury's consideration any damages relative to hospital and medical expenses. It would have told the jury '* * * that in your consideration of damages neither plaintiff can recover anything for medical or hospital expense incurred by plaintiff Donna Riggs as a result of the accident in question.' Appellant contends that 'neither of the respondents testified or offered any evidence that they, or either of them, had incurred or become liable for any medical or hospital expense.'
Plaintiffs pleaded, and defendant admitted by answer, 'that at all times mentioned herein plaintiff Jack W. Riggs, was the husband of Donna D. Riggs, and entitled to services, earnings and society of the said Donna D. Riggs.' Appellant in his brief admits that 'respondent Jack W. Riggs, as the husband of respondent Donna D. Riggs, would be legally responsible for her care and support, which would include medical and hospital bills, but (says) there is no testimony in the record that he owed them or had paid them.'
We agree that there is no direct testimony that Jack owed or had paid the mentioned bills, however, the record shows that he took his wife in his automobile to Kansas City on a number of occasions to see Dr. Poser; and that he was present when Dr. Poser advised her to quit working at Ramsey's. Without objection, plaintiff's attorney was permitted to ask Dr. Hurst and obtain the answer 'yes' to the question: 'Did you, Doctor, at my request or possibly Mr. Buehner's request total the charges which you have made or will make to Mrs. Donna Riggs, I suppose to her husband, as of the date February 27, 1957?' (Italics ours). The several statements for medical and hospital services rendered to Donna (totaling in excess of $1,000) were, in most instances, directed to Mrs. Donna Riggs or Mrs. Jack Riggs at her residence where she resided with her husband. There was evidence that various charges for medical services and hospitalization were reasonable and proper and the statements therefor were admitted in evidence without objection.
Appellant says they were admissible in Donna's case as evidence of injury. The record further shows that Donna's salary, when employed before her injury, was $140 per month and commissions; and that she has been unemployed since June 1956. Her husband owned and operated a tool and die shop in Joplin.
There is no contention here that the services rendered Donna were not necessities in view of her injuries. There is no evidence in the record directly showing that the hospital and physicians rendering the services to Donna extended credit personally to her, or relied alone upon her responsibility or had any contract with her to the exclusion of her husband. See McLean v. Kansas City, 81 Mo.App. 72; Lowenstein v. Widdicomb, Mo.App., 52 S.W.2d 1044; Johnson v. Briscoe, 104 Mo.App. 493, 500, 79 S.W. 498; Audrain County v. Muir, 297 Mo. 499, 249 S.W. 383, 386; Wilt v. Moody, Mo.Sup., 254 S.W.2d 15, 19. On this record nothing appears to rebut the presumption of liability of plaintiff's husband Jack for the amounts due for the medical and hospital services rendered to his wife Donna. Instruction No. 6, was therefore, properly refused.
Appellant contends that Instruction No. 1 is erroneous because it assumed and did not require the jury to find that Jack W. Riggs was 'in fact damaged through the loss of services of his wife' and further assumed and did not require the jury to find that he 'had in fact incurred expense for doctor and hospital bills.'
In the second count of the petition plaintiff Jack sought to recover damages on account of expenses necessarily incurred for nursing care, medical attendance and hospitalization of his wife because of her injuries and, also, for compensation for the loss of her services, earnings and society. As stated, it was admitted by the pleadings that Jack was the husband of Donna and, as such, was entitled to her 'services, earnings and society.' Instruction No. 1 first submitted a finding that 'if you find and believe from the evidence that plaintiff, Donna Riggs, was injured and Jack Riggs was damaged as a direct and proximate result of the collision, mentioned in evidence' (Italics ours) and, subsequently, the instruction submitted a further finding, that 'if you further find and believe from the evidence that plaintiff, Jack Riggs, was damaged as a direct and proximate result of the collision mentioned in evidence, then you will assess his damages at such sum as shown by the evidence will compensate him for the loss of services of his wife and the expenses he has necessarily incurred for doctor and hospital bills directly resulting from the injuries to his wife.' While the instruction is not in an approved form, it does require a finding that plaintiff Jack was damaged, and we think the inference is sufficient as to how damaged, before directing the assessment of the damages. In view of the issues presented and the manner in which the cause was tried, we do not consider the form of the instruction to be misleading or prejudicially erroneous under the record in this case.
Appellant next contends that the instruction is erroneous because 'there was no evidence whatsoever that respondent Jack Riggs had in fact incurred or was obligated for any medical or hospital bills.' This contention has been ruled against appellant in overruling the assignment of error as to Instruction No. 6.
Appellant also contends that Instruction No. 1 is erroneous because 'no evidence was offered or received as to any value of the alleged services furnished'; and that 'all evidence offered, as to the alleged limitations of respondent Donna D. Riggs in fully performing her usual household duties and rendering other services, related solely to describing her physical conditions.' Appellant says 'the record is devoid of factual proof regarding loss of services,' and that 'no monetary value of loss of services can be placed on a mere description of physical condition.'
It has been said that the word services 'implies whatever of aid, assistance, comfort, and society the wife would be expected to render to or bestow upon her husband, under the circumstances and in the condition in which they may be placed, whatever those may be.' See Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443, 448, 10 L.R.A.,N.S., 140; Furnish v. Missouri Pac.Ry Co., 102 Mo. 669, 676, 15 S.W. 315. The evidence hereinafter set forth as to the wife's physical condition, after the receipt of her injuries, and her inability to perform many of her domestic duties is sufficient to show loss of her services by her husband. It is true that no direct evidence was offered as to the value of Donna's society and services to her husband, but the facts and circumstances shown by this record, as hereinafter set out, concerning their relationship and Donna's inability to render services are sufficient to sustain the giving of the instruction.
It is well settled that 'the husband is entitled to recover for the loss of services of his wife of which he is deprived by the negligent act of another, even though the parties are in such circumstances that the wife is not accustomed or desired to do physical labor.' Hengelsberg v. Cushing, Mo.App., 61 S.W.2d 203, 204; Baldwin v. Kansas City Rys. Co., Mo.App., 231 S.W. 280, 282; Womach v. City of St. Joseph, supra, 100 S.W. 443, 448. Further, in a case where the husband seeks to recover for the loss of his wife's society and services it is not necessary to offer definite proof of the value of the wife's society and services. This is, in part, on the theory that the subject does not reasonably admit of direct proof of value. The rule is that, when the fact of the loss of services is shown by proof of the wife's disability from performing such services and the extent and character of the duties which she is unable to perform as a housewife are shown, the jury may infer the reasonable value from the facts and circumstances. Further,...
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