Smith v. City of St. Joseph

• Citation: 55 Mo. 456
• Parties: THOMAS R. SMITH, Respondent, v. THE CITY OF ST. JOSEPH, Appellant.
• Decision Date: 28 February 1874
• Court: United States State Supreme Court of Missouri

55 Mo. 456

THOMAS R. SMITH, Respondent,

v.THE CITY OF ST. JOSEPH, Appellant.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Buchanan Circuit Court.

Chandler & Sherman, for Appellant.

I. Compensation for plaintiff's services in waiting upon his wife should have been claimed in the first suit. Plaintiff cannot split his cause of action.

II. The law gives no such damages.

III. The petition makes no claim therefor. (Sedg. Meas. Dam., 682, n. 1; 52 Me., 378; 2 Greenl., 284; 25 Ill., 86.)

Vineyard & Loan, for Respondent.

I. The damages in the two cases are entirely different. In the former, the damages were incurred only by Mrs. Smith, in the latter they were suffered by the husband. (Rogers vs. Smith, 17 Ind., 323; Berger vs. Jacobs, 21 Mich., 215; Kavanaugh vs. Janesville, 24 Wis., 618; Hooper vs. Haskell, 56 Me., 251; McKinney vs. Western Stage Co., 4 Iowa, 420; Fuller vs. Naugatuck R. R. Co., 21 Conn., 557; Lewis vs. Babcock, 18 Johns., 443; Long vs. Morrison, 14 Ind., 595; Robalina vs. Armstrong, 15 Barb., 247.)

WAGNER, Judge, delivered the opinion of the court.

This was an action instituted by the plaintiff to recover damages for the loss of the services of his wife, and necessary expenses of medicine, doctor's bills and nurse hire paid out by him, in consequence of an injury to her which is alleged to have been occasioned by the negligence of the defendant. The charge is, that the injury to the plaintiff's wife was the result of her falling down an enbankment in one of the streets of the defendant, which was negligently left in an exposed and dangerous condition. One branch of this case has previously been in this court. (Smith vs. City of St. Joseph, 45 Mo., 449.) There the proceeding was in favor of the wife as the meritorious cause of action, the husband being joined with her under the requirements of the statute, to recover damages for the personal injuries and physical suffering that she sustained. But the petition was founded upon the same accident, and the same questions in regard to defendant's liability and negligence arose in that case that arise here.

The rules of law then laid down, were strictly conformed to and pursued in the trial of this case, on the questions of defendant's liability and negligence, and therefore it is unnecessary to review them at the present time.

There is one point of objection raised to the sufficiency of the petition, on the ground that it is not alleged that the city had graded or improved the street where the injury occurred, but this objection is not maintainable The petition is not drawn very precisely or accurately, but it contains an allegation that before the accident happened, the defendant had certain hands and workmen engaged and employed in grading the street, and that they graded it in such a manner as to leave a perpendicular embankment which was the occasion of the injury. This averment, though vexatiously inartificial, stated essentially the fact that the defendant had commenced and been engaged in grading the street, and left no doubt as to what the pleader intended.

The main questions, however, relied on for a reversal of this judgment, are, that the former judgment was a bar to the maintenance of this action, and that the court erred in its instruction in reference to damages. The judgment rendered in favor of plaintiff and wife in the former suit was solely for the damages resulting to the wife in consequence of the injuries received by her. She was the meritorious cause of the action, and the husband was merely joined under the provisions of the statute to enable her to sue. But the damages there were strictly confined to her personal injuries, and the expenses incurred by the husband, and loss of service which constitute the foundation of this action were not in that case. In some of the New England States, under the provisions of statutes regulating the subject, it is held that but one action can be maintained. Those statutes permit all the damages incident to and growing out of the injury to be recovered in the same suit. They provide for but one action. But in the other States, where no such statutory regulations exist, a contrary doctrine is held. In the case of McKinney vs. Western Stage Co., (4 Iowa, 420,) the court says “we suppose that at common law the rule is well settled, that for an injury to the person of the wife during coverture, by battery, or to her character by slander or any such injury, the wife must join with the husband in the suit. When, however, the injury is such that the husband receives a separate loss or damage, as, if in consequence of the battery, he has been deprived of her society, or has been put to expense, he may bring a separate action in his own name. Barnes vs. Hurd, 11 Mass., 59; Lewis vs. Babcock, 18 Johns., 443; 2 Saund. Pl. & Ev., 568; and this rule we do not understand to be changed by the code.”

The Indiana Court holds, also, that the established doctrine is, that for a tort committed upon a wife, two actions will lie, one by the husband alone for the loss of service, expenses, &c., and the other by the husband and wife for the injury to the person. (Rogers vs. Smith, 17 Ind., 323; Long vs....