Toomey v. Wells

• Decision Date: 02 February 1926
• Citation: 280 S.W. 441,218 Mo.App. 534
• Parties: NOXON TOOMEY, Administrator of the Estate of PATRICK JOSEPH TOOMEY, Deceased, Appellant, v. ROLLA WELLS, Receiver of UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent.
• Court: Missouri Court of Appeals

280 S.W. 441

218 Mo.App. 534

NOXON TOOMEY, Administrator of the Estate of PATRICK JOSEPH TOOMEY, Deceased, Appellant, v. ROLLA WELLS, Receiver of UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent.

Court of Appeals of Missouri, St. Louis

February 2, 1926

Appeal from the Circuit Court of the City of St. Louis.--Hon. Wm. H Killoren, Judge.

AFFIRMED AND REMANDED.

Judgment affirmed and cause remanded.

Lee A Hall for appellant.

(1) (a) The husband's right of action for loss of services companionship and society of his wife, and expenses incurred in palliating her injuries resulting from her being negligently injured by another, arises out of his obligation to support and care for his wife in sickness and in health, and is for an injury to his personal estate, and survives after his death, to his administrator. Secs. 97 and 98, R. S. 1919; Cregin v. Brooklyn C. Railroad Co., 75 N.Y. 192; Gordon v. Strong, 158 N.Y. 407, 409; Gorlitzer v. Wolffberg, 208 N.Y. 475, 478; Smith v. Lehigh Valley R. R. Co., 232 Pa. 456; Forbes v. City of Omaha, 112 N.W. 326. (b) After suit filed by the husband in his lifetime for loss of services of his wife, and expense of palliating her injuries due to the negligence of another, it may be revived under section 4231, R. S. 1919. Primm v. Seligman, 253 S.W. 469; Sections 97 and 98, supra, point 1a; Sec. 4231, R. S. 1919; Smith v. Lehigh Valley R. R. Co., supra, point 1a. (2) The cause of action is entire, and includes all elements of the damage, flowing from the one wrong done. Snyder v. Ry. Co., 86 Mo. 617; Norton v. Reed, 281 Mo. 490; Wietueschester v. Miller, 276 Mo. 331; Cook v. Globe Ptg. Co., 227 Mo. 524; Laughlin v. Powder Co., 153 Mo.App. 512; Cregin v. Railroad, supra point 1a; Bradley v. Federal Life Ins Co., 216 Del. App. 602; Tucker v. Western U. T. Co., 157 N.Y.S. 873.

Charles W. Bates, T. E. Francis and Austin E. Park for respondent.

(1) The trial court did not err in granting defendant a new trial on the ground that plaintiff's instructions erroneously permitted a recovery for loss of consortium. Plaintiff's intestate had a cause of action against defendant for loss of his wife's services, comfort and society, resulting from her injury through the negligence of defendant, but such cause of action was not for a wrong done to the "property rights and interests" of the husband. Longan v. Railroad, 299 Mo. 561; Gilkerson v. Railroad, 222 Mo. 173; Bates v. Sylvester, 205 Mo. 493; Vawter v. Railroad, 84 Mo. 685; Stanley v. Vogel, 9 Mo.App. 98; James v. Christy, 18 Mo. 162; Secs. 97, 98, 4231, R. S. 1919; Miller v. Transit Co., 216 Mo. 99; Elliott v. Kansas City, 210 Mo. 576; Greer, Admr., v. Railroad, 173 Mo. 276. The husband's cause of action for loss of services, comforts and society of his wife, if based upon a personal injury to the wife, is the common-law action of "trespass on the case." Bl. Com., pp. 139-142; Guy v. Livesey, Cro. Jac. 501; Hyde v. Scyssor, Cro. Jac. 538; Cooley, Torts, 566; 2 Hilliard, Torts, 498; Schuler, Dom. Rel., sec. 143; Reeve, Dom. Rel., 38; Southerland, Damages, sec. 1252; Furnish v. Mo. Pac. Ry., 102 Mo. 669; Elliott v. Kansas City, 210 Mo. 576. Such causes of action do not survive the death of the husband, and, therefore, cannot be revived by the personal representative of the deceased husband. Authorities cited above. See, also: Selleck v. Janesville, 104 Wis. 570, 80 N.W. 944. There is no statute in Missouri abrogating the common law as to such actions. The cause of action, therefore, is not a transmitted one. For these reasons, the giving of plaintiff's instructions Nos. 1, 2 and 4 was error, and likewise the refusal of defendant's instructions Nos. 1 and 2 was error, and the granting of a new trial to defendant was, therefore, proper. (2) The order granting a new trial to defendant was proper and should be affirmed for the further reason that the court erred in giving and reading to the jury plaintiff's instruction No. 3. Said instruction is erroneous because it authorized the jury to return a verdict for plaintiff upon any theory they might construct or evolve out of their own minds, instead of submitting, as it should have done, the specific negligence pleaded in the petition and the acts of negligence which plaintiff's evidence tended to prove. Beave v. Transit Co., 212 Mo. 331; Miller v. Railroad, 155 Mo.App. 528; Allen v. Transit Co., 183 Mo. 411; Stumpf v. United Rys., 227 S.W. 852; Feary v. Railroad, 162 Mo. 96; Ely v. Railroad, 77 Mo. 34; Waldhier v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Leslie v. Railroad, 88 Mo. 50; Yarnell v. Railroad, 113 Mo. 570; Bunyan v. Railroad, 127 Mo. 12; Hite v. Railroad, 130 Mo. 132; McManamee v. Railroad, 135 Mo. 440; Bartley v. Railroad, 148 Mo. 124; Motsch v. Standard Oil Co., 223 S.W. 676; Walling v. Mo. Stair Co., 227 S.W. 880; Waller v. Graff, 251 S.W. 733. (3) The order granting a new trial to defendant was proper and should be affirmed for the further reason that the court erred in giving and reading to the jury plaintiff's modified instruction No. 2. Said instruction is erroneous because it authorized the jury to return a verdict for plaintiff upon any theory they might construct or evolve out of their own minds, instead of submitting, as it should have done, the specific negligence pleaded in the petition and the acts of negligence which plaintiff's evidence tended to prove. Beave v. Transit Co., 212 Mo. 331; Miller v. Railroad, 155 Mo.App. 528; Allen v. Transit Co., 183 Mo. 411; Stumpf v. United Rys., 227 S.W. 852; Feary v. Railroad, 162 Mo. 96; Ely v. Railroad, 77 Mo. 34; Waldhier v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Leslie v. Railroad, 88 Mo. 50; Yarnell v. Railroad, 113 Mo. 570; Bunyan v. Railroad, 127 Mo. 12; Hite v. Railroad, 130 Mo. 132; McManamee v. Railroad, 135 Mo. 440; Bartley v. Railroad, 148 Mo. 124; Motsch v. Standard Oil Co., 223 S.W. 676; Walling v. Mo. Stair Co., 227 S.W. 880; Waller v. Graff, 251 S.W. 733.

DAUES, P. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.--

This action was filed originally by Patrick Joseph Toomey on March 8, 1922, for medical expenditures and for loss of services and companionship of his wife, Mary V. Toomey, resultant from alleged injuries received by the wife through the negligence of the defendant, respondent here. On March 12, 1922, Toomey, the husband, died, and thereupon Noxon Toomey, the son of the original plaintiff, qualified as his administrator, and on April 19, 1922, entered his appearance and the cause was revived in his name. The petition was then amended, setting out those facts and alleging as a cause of action that the wife of Patrick Joseph Toomey on February 1, 1921, was injured by being thrown to the floor of one of defendant's cars by an unusual jerk. It is alleged that her injuries had prevented her from playing the piano, whereby her husband was deprived of the pleasure and happiness derived therefrom, and that because of her injuries Toomey lost her services and the comfort and enjoyment of her companionship and society; that he has expended $ 500 for medical attention and nursing for her and that further expenditures would be necessitated, and that the suit is brought for injuries other than those resulting in death.

The answer is a general denial.

The cause was tried to a jury and there was a verdict in favor of the plaintiff for the sum of $ 1986. A motion for new trial was filed by defendant in due time, which the court overruled, conditioned upon plaintiff entering a remittitur in the sum of $ 1500. Plaintiff declining to remit within the allotted time, the court sustained defendant's motion for new trial. From the order granting a new trial, plaintiff has brought this appeal.

The verdict was for $ 1986, of which $ 486 was for expenses incurred by the husband for the wife, and $ 1500 was for loss to the deceased of services, companionship and the comfort of the society of Mrs. Toomey for a period of one year and forty days, the period of time from the injury of the wife to the husband's death. The lower court, by instructions, authorized the jury to find for all these items, including loss of society and comfort, but thereafter concluded that the element for which the jury awarded the $ 1500 abated, and for failure of plaintiff to remit that amount of the verdict, sustained defendant's motion for new trial.

We have, then, the one question before us as to whether the trial court correctly held in granting a new trial, that the claim for damages based upon loss of society and personal services does not survive the husband's death for the purpose of enriching the husband's estate. This question, in its exactness, seems to be new in our jurisdiction.

It should be kept in mind that the husband died a year after the alleged injury to his wife, and that four days before his death he commenced this action which, after his death, was prosecuted to judgment by his son, the administrator of his estate.

In limine, it may be stated that the husband's cause of action for the loss of the services, comforts and society of his wife, if based upon a personal injury to the wife, is the common-law action of "trespass on the case." In Missouri, we have no statute abrogating the common law as to such actions. As to abatement or survival of causes of action ex delicto, there are certain statutory enactments which are but declaratory of the common law. Section 97, Revised Statutes Missouri 1919, is as follows:

"For all wrongs done to property, rights or interest of another for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, in the same manner and with like effect, in all respects, as...