State ex rel. National Refining Co. v. Seehorn
| Citation | 127 S.W.2d 418,344 Mo. 547 |
| Decision Date | 20 April 1939 |
| Docket Number | 36178 |
| Parties | State of Missouri at the relation of the National Refining Company, a Corporation, Relator, v. Thomas J. Seehorn, Judge of the Circuit Court of Jackson County at Kansas City, Division No. 3 |
| Court | United States State Supreme Court of Missouri |
Provisional rule made absolute.
Ringolsky Boatright & Jacobs for relator.
(1) Husband's cause of action for damages for alleged negligent injury of his wife does not survive his death. (a) At common law all actions based on tort died with the death of either party. This included actions by the husband for loss of consortium, comfort, society and services of the wife and medical expense incurred on her behalf, the right to recover same being grounded in tort. Toomey v Wells, 218 Mo.App. 534, 280 S.W. 441; Elliott v Kansas City, 210 Mo. 576, 109 S.W. 627; Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73; Showen, Admr., v. Met. St. Ry. Co., 164 Mo.App. 41, 148 S.W. 135; State ex rel. v. Daues, 314 Mo. 13, 283 S.W. 51; Burg v. Knox, 334 Mo. 329, 67 S.W.2d 96; Jordan v. St. Joseph Ry., L. H. & P. Co., 335 Mo. 319, 73 S.W.2d 205; 1 C. J. 203, sec. 385. (b) The common-law rule prevails in Missouri, except to the extent expressly changed by statute. Cases under 1(a). (c) No statute of Missouri can be found changing the common-law rule in respect to the husband's right of action on account of alleged negligent injury of his wife. Toomey v. Wells, 218 Mo.App. 534, 280 S.W. 441; Burg v. Knox, 334 Mo. 329, 67 S.W.2d 96; Johnson v. Savings Trust Co., 66 S.W.2d 113, wherein the Toomey case is expressly approved by this court. (d) The husband has but one cause of action. He is permitted to recover a lump sum as damages for the negligent injury of his wife. In computing his damage, several elements may be considered, viz., loss of services, comfort, companionship, society, and medical expenses incurred. He does not have a separate cause of action for each of the several elements that may be considered in fixing his damages. Upon his death the right to recover on account of each and all of the several elements dies with him -- it does not die in part and survive in part. (2) Prohibition is a proper remedy. (a) It is settled in this State that where the pleader has not stated and cannot state a cause of action of which the circuit court would have jurisdiction, prohibition will lie. State ex rel. v. Sevier, 339 Mo. 483, 98 S.W.2d 677; Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; State ex rel. v. Barton, 104 S.W.2d 284.
Luther W. Adamson and Martin J. O'Donnell for respondent.
(1) In Missouri a husband is entitled to compensation for the loss of the services (which includes comfort and society) of his wife caused by the negligence of another as she was at the time when such negligence impaired her health, strength and usefulness as a helpmate, and any diminution of her capacity for usefulness, aid and comfort as a wife constitutes a basis for compensatory damages. Furnish v. Ry. Co., 102 Mo. 669. "Service in the sense of labor or assistance such as a servant might perform or render is not always given or expected from the wife. 2 Cooley on Torts (4 Ed.), 168; Long v. Booe, 106 Ala. 570; Denver Consol. Trainway Co. v. Ritz, 14 Colo.App. 132; Furnish v. Ry. Co., 102 Mo. 609; Riley v. Lidske, 49 Neb. 139; Selleck v. Janesville, 104 Wis. 570. That word service includes consortium or comfort and society. Rapid Transit Co. v. Reeder, 42 Ind.App. 520, 85 N.E. 1042; James v. Christy, 18 Mo. 162. This rules applies to loss of services of even a child by death. (2) Since the right of action of the husband for the loss of the society, comfort and services of his wife occasioned by the wrongful act of another is protected by the constitutional provision that "The courts of justice shall be open to every person and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay" the alleged rule of the common law that rights of action based on torts die with the person is in conflict with said provision of the Constitution and hence said alleged common-law rule is without force or effect in this State. Sec. 10, Art. II, Mo. Const.; Waller v. Trust Co., 103 Fla. 1025, 138 So. 780; State v. Parks, 175 So. 786; Wiflong v. Ry., 262 N.W. 537; Van Beeck v. Sabine Towing Co., 300 U.S. 343. (3) Even a statute enacting the alleged common-law rule that all rights of action based on torts shall die with the person is void because in conflict with said provision of the Constitution. Waller v. Trust Co., 103 Fla. 1025, 138 So. 780; State v. Parks, 175 So. 786; Wiflong v. Ry. Co., 262 N.W. 537. (4) The return directs attention to the fact that the administrator's cause of action survived under the law and that by virtue of Sections 97, 98 and 99, Revised Statutes 1929, it was the duty of the administrator to proceed with the action theretofore instituted by the deceased husband and therefore prohibition did not lie for the reason that by virtue of said sections the right of action did not abate. Cregin v. Ry. Co., 75 N.Y. 192; Cregin v. Ry. Co., 83 N.Y. 595; Gorlitzer v. Wolfberg, 208 N.Y. 475; Sherer v. Woodruff, 45 N.Y.S. 712; Scott v. Brown, 24 Hun., 533; Forbes v. Omaha, 79 Neb. 6, 112 N.W. 326; Sweet v. Ry. Co., 41 N.Y.S. 549; Foels v. Tonawanda, 20 N.Y.S. 447; James v. Christy, 18 Mo. 162; Shields v. Yonge, 15 Ga. 349; Sullivan v. Ry. Co., 3 Dill. 334; Baker v. Bolton, 1 Campbell, 393; Cummins v. Pub. Serv. Co., 334 Mo. 672; Toomey v. Wells, 218 Mo.App. 534.
Cooley, C. Westhues and Bohling, CC., concur.
This is an original proceeding in prohibition in this court, whereby relator, National Refining Company, a corporation, seeks to prohibit respondent, Honorable Thomas J. Seehorn, Judge of the Circuit Court of Jackson County, at Kansas City, presiding in Division 3 of said court, from proceeding with the trial of a cause pending in said court, growing out of the following facts, which appear from the pleadings:
August 8, 1934, A. H. Fawkes, as plaintiff, filed suit against relator and two others, seeking to recover $ 25,000 damages for the loss of the comfort, society and services of his wife, and medical expenses incurred on her behalf. His petition alleged that on May 9, 1931, his wife, Bessie H. Fawkes, suffered personal injuries due to certain negligence of the named defendants and that as a result of her injuries he had been compelled to incur expense for medical and surgical attentions to her and had been deprived of her comfort, society and services, by all of which he had been damaged in the sum sued for. Before that suit was brought to trial, and on March 21, 1936, said A. H. Fawkes died. His son, Clio H. Fawkes, was appointed administrator of his estate. For convenience and brevity we shall refer to said A. H. Fawkes as plaintiff and to said Clio H. Fawkes as administrator. The administrator filed in the circuit court suggestion of the death of the plaintiff and motion to revive the cause in the name of the administrator. The circuit court ordered that the cause be so revived and proceeded with. The administrator then filed a petition setting forth the death of the plaintiff, the appointment of the administrator and revival of the cause, etc., and alleging as cause of action the facts alleged in plaintiff's original petition. Relator, defendant in said action, attacked said petition by demurrer and motion to strike on the grounds that the administrator is not authorized in law to prosecute the alleged cause of action of the deceased plaintiff and that said cause of action, if any, abated or died with the plaintiff and did not survive to and cannot be prosecuted by his administrator. The court overruled said demurrer and motion and required the defendants to answer, and will proceed with the hearing of said cause, so revived, unless prohibited by this court.
The first question in the proceeding before us is, does plaintiff's cause of action survive his death so as to be maintainable by his administrator? Relator says no, because it did not so survive at common law and we have no statute providing for such survival. Respondent says it survives and may be prosecuted by the administrator under Sections 97, 98 and 99, Revised Statutes 1929 (Mo. Stat. Ann., pp. 61-63), which read:
At common law actions based on tort died with the death of either the wronged or the wrongdoer. The common-law rule prevails in Missouri except so far as it has been changed or modified by statute. [Sec. 645, R. S. 1929, Mo. Stat. Ann p. 4894; Toomey v. Wells, 218 Mo.App. 534, 280 S.W. 441; ...
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