Stout v. K. C. Terminal Railway Company

• Decision Date: 03 March 1913
• Parties: BEULAH STOUT, Respondent, v. K. C. TERMINAL RAILWAY COMPANY et al., Appellants
• Court: Kansas Court of Appeals

157 S.W. 1019

172 Mo.App. 113

BEULAH STOUT, Respondent, v. K. C. TERMINAL RAILWAY COMPANY et al., Appellants

Court of Appeals of Missouri, Kansas City

March 3, 1913

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

Judgment reversed.

J. E McFadden and O. Q. Claflin, Jr., for appellant; J. H. Stone Samuel W. Sawyer and James M. Souby for appellant Kansas City Terminal Railway Company.

(1) Plaintiff's amended petition does not state a cause of action. An investigation of the common law fails to reveal a true analogy between the right of the wife to the society of her husband and the right known as consortium, which formed the gist of the action at common law by the husband for injuries to his wife. Guy v. Levesey, Cro. Jac. 501; Hyde v. Scyssor, Cro. Car. 538; Marri v Railroad, 84 Conn. 9, 78 A. 582. (2) To allow recovery to the plaintiff in this case would be to violate the established rule of damages applicable in such cases. 111 Blackstone's Comm. 140; 1 Chitty on Pleading (13 Am. Ed.), 73; 1 Bacon's Ab. 502; Reeves Dom. Rel. 138; Pollock on Torts, sec. 196; Tiffany, Pearsons & Dom. Rel. 77; Schouler Dom. Rel. (5 Ed.), sec. 77; 1 Cooley on Torts (3 Ed.), 69, et seq.; 1 Sutherland Damages (3 Ed.), sec. 16; Logan v. Railroad, 96 Mo.App. 461; Brown v. Railroad, 31 Mo.App. 661; Blair v. Railroad, 89 Mo. 334; Spohn v. Railroad, 116 Mo. 617; Rawlings v. Railroad, 97 Mo.App. 511; Marshall v. Mining Co., 119 Mo.App. 270; Furnish v. Railroad, 102 Mo. 669; The Notting Hill, L. R., 9 P. D. 105; Railways Comrs. v. Coultas, L. R., 13 App. Cas. 222; Winsmore v. Greenbank, Wiles, 577; Baker v. Bolton, 1 Camp. 493; Hyatt v. Adams, 16 Mich. 180; McKinney v. Stage Coach Co., 4 Iowa 420; Jones v. Railroad, 40 Hun. 349; Bolger v. Railroad, 205 Mass. 420, 91 N.E. 389; Cregin v. Railroad, 83 N.Y. 595. (3) In every reported case in which the wife has attempted to assert such a right as that here sought to be asserted, it has been unequivocally denied her. 6 Thompson's Comm. on Law of Neg., sec. 7411; 21 Cyc. 1530; Goldman v. Cohen, 63 N.Y.S. 459; Feneff v. Railroad, 203 Mass. 278, 89 N.E. 436, 24 L. R. A. (N. S.) 1024, 133 Am. St. Rep. 291; Brown v. Kistelman, 98 N. E. (Ind.) 631. (4) The analogy sought to be made between this action and those brought by the wife for the alienation of the husband's affections will not hold. And herein of other analogies. Hickey v. Welch, 91 Mo.App. 4; Cornelius v. Cornelius, 233 Mo. 1; Fron kv. Fronk, 159 Mo.App. 543; Clark v. Hill, 69 Mo.App. 541; Spohn v. Railroad, 116 Mo. 617; Sharp v. National Biscuit Co., 179 Mo. 553; Howard v. Scarritt Estate Co., 161 Mo.App. 552; Behan v. Transit Co., 186 Mo. 430; Morgan v. Ross, 74 Mo. 318; Comer v. Taylor, 82 Mo. 341; Buck v. Ry. & Light Co., 46 Mo.App. 555; Andrew v. Waddell, 54 Mo.App. 611; Frick v. Railroad, 75 Mo. 542; Heisler v. Heisler, 127 N.W. 823; Burch v. Goodson, 116 P. 216; Powers v. Sumbler, 110 P. 97; Miller v. Miller, 134 N.W. 1058; Flandemeyer v. Cooper, 98 N. E. (Ohio) 102; Corbett v. Railroad, 71 P. 1065; Washburn v. Abram, 28 Ky. L. R. 985, 90 S.W. 997; Soper v. Igo, 28 Ky. L. R. 519, 89 S.W. 538, 1 L. R. A. (N. S.) 362; Lynch v. Knight, 9 H. L. Cas. 577. (5) The court erred in giving the instruction which it gave at plaintiff's request. Birtwhistle v. Woodward, 95 Mo. 113; Burton v. Railroad, 111 Mo.App. 617; Jackson v. Bowles, 67 Mo. 609; Crews v. Lackland, 67 Mo. 621; Flynn v. Bridge Co., 42 Mo.App. 529; Clark v. Loan Co., 46 Mo.App. 248; Machine Co. v. Bobbst, 56 Mo.App. 427; Bank v. Murdock, 62 Mo. 70. (6) There was a total lack of evidence to support the issue of negligence on the part of the appellant, Kansas City Terminal Railway Company, and as to this appellant, the court erred in submitting the case to the jury. Hunt v. Railroad, 89 Mo. 607, S. C., 14 Mo.App. 160; Martin v. Iron Works, 18 N.W. 109. (7) The court erred in giving the instruction which it gave at plaintiff's request. Birtwhistle v. Woodward, 95 Mo. 113; Burton v. Railroad, 111 Mo.App. 617; Jackson v. Bowles, 67 Mo. 609; Crews v. Lackland, 67 Mo. 621; Flynn v. Bridge Co., 42 Mo.App. 529; Clark v. Loan Co., 46 Mo.App. 248; Machine Co. v. Bobbst, 56 Mo.App. 427; Bank v. Murdock, 62 Mo. 70; Wells on res judicata and stare decisis, sec. 595; Thornton v. Thornton, 27 Mo. 302; Venable v. Railroad, 112 Mo. 103, 125; Fears v. Riley, 148 Mo. 49, 63.

C. W. Prince and E. A. Harris for respondent.

Our instruction did submit the issue of injuries received by plaintiff's husband, to the jury, but the nature and character of the injuries was not gone into. If appellants desired this to be done, they had that privilege and that option. The following cases are authority on this proposition. Barr v. Railroad, 138 Mo.App. 431; Wood v. Kelly, 82 Mo.App. 598; Haymaker v. Adams & Son, 61 Mo.App. 581; Rose v. McCook, 70 Mo.App. 183; Browning v. Railway, 124 Mo. 55.

OPINION

ELLISON, J.

--Plaintiff's action is to recover damages for the loss of the "consortium, comfort and society" of her husband through "careless and negligent acts" of defendants. She recovered judgment in the trial court for the sum of three thousand dollars.

The action was instituted against four several defendants. Defendant Montgomery Ward & Company's lessors were constructing a large addition to their mercantile building. Defendants Stone and Gentry were contractors in such construction. A spur track connecting defendant railway company's track ran into these buildings, over which its cars ran conveying material in for the new addition, as well as merchandise into and out of the main building. Plaintiff's husband was in the employ of Gentry as a laborer and was standing by a scaffold constructed of large heavy plank so near to the track that some of the upper boards stuck out over the track. In taking out some cars, the lower ones passed under these boards, but a high one, built for carrying furniture, struck them and knocked the scaffold down onto plaintiff's husband, injuring him severely and permanently. Plaintiff dismissed the case as to Berry, and the court directed a verdict for Montgomery Ward & Co., leaving the case standing against Stone and the railway company, and it was against them the judgment was rendered. Stone and the railway company made a satisfactory adjustment and settlement with plaintiff's husband in consideration of which he acknowledged satisfaction for all damages "on account of the injuries received by him and for and on account of all other injuries which may flow from or be connected with injuries received by him."

The injuries plaintiff alleges her husband received were many and were severe and permanent. Of these shown in evidence she relies principally upon the crippled condition of his body, the lasting disturbance of his nervous system, the enfeebling of his mind and the loss of his sexual power.

Thus is put before us a case in which damages are asked by the wife for the loss of the consortium, comfort and society of her husband, caused by an injury resulting from the negligence of the defendants who, while confessing the negligence, deny that such an action is sanctioned by the law. The word "consortium" covers plaintiff's case, for the additional phrase "comfort and society" added by the pleader, are but parts of that word; that is, they are, in part at least, the meaning of the word. Formerly consortium included the service a wife owed to the husband, and at common law an action for the loss of consortium had for its principal basis the loss of service, with the loss of society and comfort more in the nature of an aggravating incident. [Marri v. Railroad, 84 Conn. 9.] The wife did not have such an action for the reason that her existence in a legal sense was swallowed up in that of her husband and her services belonged to him. But since the statutes of different states, keeping step with a better civilization, have in great part emancipated married women from the rigor of the old regime by conferring partial independence upon them as to personal and property rights, the courts of this and other States have inclined to allow her an action, in most instances, where he might have maintained one for a corresponding injury.

We have used the above expression "partial independence" advisedly. For in this State, notwithstanding the statute, as well as in many other jurisdictions, the wife still owes domestic service to the husband, and if she receives personal injury through the negligence of another, she cannot recover for her loss of time relating to her domestic duties (Perrigo v. St. Louis, 185 Mo. 274, 289, 290, 84 S.W. 30; Cullar v. Railway Co., 84 Mo.App. 340), such services being his, the damages for the loss of them are recoverable by him. [Womach v. St. Joseph, 201 Mo. 467, 487, 100 S.W. 443; Trask v. Livingston Co., 210 Mo. 582, 109 S.W. 656; Thompson v. St. Ry. Co., 135 Mo. 217; Blair v. Railway Co., 89 Mo. 334; Plummer v. City of Milan, 70 Mo.App. 598; 2 Sedgwick on Damages, sec. 486.]

So we have guarded our statement that she could maintain an action where he could maintain one for a corresponding injury, by limiting it to actions generally. She has not that right in all instances; for, though he may recover for the loss of her service, she cannot, in this State, recover for the loss of his. The damages resulting from an injury to his earning power are owing to him alone.

If then, there must be some loss of service so as to furnish a support to the allowance of damages for loss of comfort and society, the three elements making up the consortium, we could sustain an action for consortium by the husband and yet refuse the same action to the wife; since, as just stated, she has no legal claim for the loss of services of her husband.

Damages for the loss of conso...