Toomey v. Wells

• Decision Date: 02 February 1926
• Docket Number: No. 18755.,18755.
• Parties: TOOMEY v. WELLS.
• Court: Missouri Court of Appeals

280 S.W. 441

TOOMEY v. WELLS.

No. 18755.

St. Louis Court of Appeals. Missouri.

February 2, 1926.

Appeal from St. Louis Circuit Court; Wm. H. Killoren, Judge.

Action by Patrick Joseph Toomey against Rolla Wells, receiver of the United Railways Company of St. Louis, wherein Noxon Toomey, on decease of Patrick Joseph Toomey, qualified as his administrator, and the cause was revived in his name. From an order granting defendant a new trial after verdict for plaintiff, plaintiff appeals. Affirmed and remanded.

Lee A. Hall, of St. Louis, for appellant.

Chas. W. Bates, T. E. Francis, and Austin E. Park, all of St. Louis, for respondent.

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 $1,986. 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 $1,500. 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 $1,986, of which $486 was for expenses incurred by the husband for the wife, and $1,500 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 $1,500 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, comfort, 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, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract."

Section 98 reads thus:

"The preceding section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to actions on the case for injuries" to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator."

In the early case of James v. Christy, 18 Mo. 162, the facts, briefly, were that a father brought suit to recover damages suffered by him in the loss of his son, who was killed at the age of 15 years by an explosion on a steamboat owned by defendant and upon which the boy was a passenger. After beginning the suit, the plaintiff died, and the suit was sought to be revived in his name. It was there held that the action did not abate by the death of the plaintiff but survived to his representatives, and the court expressly ruled that the actual damages from the loss of the son's services alone survived, and that the administrator who sued for the father's estate would not be entitled to any remuneration for the loss of the society and comforts afforded by the child to its parent; that damages of that character died with the parent, and his estate was entitled to compensation only so far as it had been lessened by the loss of the son's services. Whatever may be said of this case as an authority for the proposition that the estate of the deceased husband would be entitled to recover for loss of services of the wife, it does, however, distinctly rule that the measure of damages would be the value of the wife's services lost to the husband during the remainder of his life, and disregards the element of damages consisting of the loss of society and comfort. These elements are expressly ruled out even by the James Case.

It is instructive to follow the consideration of the James Case by a reading of Stanley v. Vogel, 9 Mo. App. 98, where the James Case as to the loss of services to the deceased's estate is called "peculiar."

In Gilkeson v. Railroad, 121 S. W. 138, 222 Mo. 173, 24 L. R. A. (N. S.) 844, 17 Ann. Cas. 763, the Supreme Court collated the authorities of this state on the general subject, and quoting from the case of Bates v. Sylvester, 205 Mo. 493, 104 S. W. 73, 11 L. R. A. (N. S.) 1157, 120 Am. St. Rep. 761, 12 Ann. Cas. 457, the court said at page 188 (121 S. W. 143):

"By reference to section 96 [which is now 97 R. S. 1919], it will be noted that the statute refers to `wrong done to property, rights or interests of another,' and counsel for plaintiff cites us to James v. Christy, 18 Mo. 162. That was an action by the administrator of James for the negligent killing of his son by the explosion of a steam ferryboat on which his son was a passenger. The son was living with his father and was fifteen years old. The...