Womach v. City of St. Joseph
| Decision Date | 22 February 1907 |
| Citation | 100 S.W. 443,201 Mo. 467 |
| Parties | WOMACH, Plaintiff in Error, v. CITY OF ST. JOSEPH |
| Court | Missouri Supreme Court |
Error to Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.
Reversed and remanded.
Brewster Ferrell & Mayer and Vinton Pike for plaintiff in error.
(1) The circuit court was of the opinion that Brown v Railroad, 96 Mo.App. 164, controlled this case, and on its authority directed the nonsuit. In the Brown case the husband had joined his wife in the former action and was an actual and proper party. The judgment was in form in his favor upon the same issue raised in the second case. He had the right to adopt the judgment in favor of himself and wife against the same defendant, which could not be allowed to say it had not contested the same issue with him. Harmon v Auditor, 123 Ill. 122, is cited by the Court of Appeals, and the following paragraph from the opinion in that case suggests the true ground upon which the Brown case may be sustained: "Moreover, the Pinckney suit was adopted by the town as its own litigation when the town paid the expenses of it, and compromised it through the town officers, and by resolutions of the town meetings." In the case at bar, the husband was not a party to the former judgment, nor privy to the cause of action. The accident founded two causes of action, one in favor of the wife, and the other in favor of the husband. The right and compensation of each were distinct and independent. Smith v. City, 55 Mo. 456. The only case cited by the Court of Appeals nearly paralleling this is Anderson v. Railroad, 9 Daly 488. Of that case decided by an inferior court, Van Vleet says: "This case seems to me to be wrong." 2 Form. Adj., 1130. But in that case the parent adopted the adjudication in favor of his son, for the loss of whose services he was suing. He could take advantage of the judgment or not; and if he could decline the advantage, he could refuse to be bound by a judgment adverse. As between the son and the defendant the former record established the facts which made defendant liable, and as the father was suing on a transaction between the son and defendant, he was privileged to rely on what had been established between them. A guarantor may plead in bar a judgment in favor of principal obligor, although an adverse judgment would not be binding upon him. A judgment conditional in effect will not be binding until accepted. In re Railroad, 58 Hun 563; Railroad v. Newton, 94 Ala. 443. Where two have an action and one sues and is defeated, the other is not barred. Railroad v. Kutac, 72 Tex. 643. The action in the Brown case was for a tort. If it had been a case of passenger against carrier, assumpsit on a contract to carry safely, as in Pollard v. Railroad, 101 U.S. 223, the judgment in the former action, either way, would have been binding. But says the opinion in the Pollard case, "the rule does not prevail when the action is in tort against the carrier for a breach of public duty." This distinction is overlooked in the Brown case. It is recognized by this court in Blair v. Railroad, 89 Mo. 338. (2) At common law the husband was a necessary party to the wife's suit for personal injuries, for he was the beneficiary of the recovery, being entitled, upon reduction to possession, to her actions for torts to the person causing pain and anguish, as well as to those growing out of contract. He was concluded by the judgment at the common law against himself and wife, for he was a necessary party and had a real interest. But our statute has made a radical change. Section 4340, Revised Statutes 1899, provides that the damages sued for by plaintiff's wife shall be and remain her separate property and under her sole control. Section 4335 provides that she shall be deemed a femme sole and may sue and be sued at law or in equity with or without her husband being joined. Section 4340 provides that damages for the violation of any of her personal rights shall be and remain her separate property and under her sole control, and that she may sue without joining her husband, by any necessary action. The release by one is not a bar to the action of the other. Blair v. Railroad, 89 Mo. 338; Smith v. Warden, 86 Mo. 382; Brown v. Kennard, 13 Mo.App. 175. The husband, at common law, could release the claim of the wife for damages, and still sue for his own damages for loss of service, etc. Schouler, Dom. Rel., 77, p. 129. The action in this case was founded on defendant's breach of a public duty. The damages are independent and under our law must be recovered in separate and independent actions.
W. B. Norris and E. M. Spencer for defendant in error.
(1) At common law the wife had a cause of action against another by whose negligence she was injured, and also the husband had a cause of action against the same party for the same negligence. It was necessary in the suit by the wife that the husband should be joined. He stood as a sponsor for the wife and was a party to the cause of action. A judgment rendered in such a case against the wife was binding and conclusive as against him, he being a necessary party to the cause of action. This seems to be conceded by the brief of appellant, but, as under our present system of procedure, the husband is not a necessary party to the suit, and the contention is that the law of procedure as modified by Missouri practice has changed the substantive law in its principle that has existed heretofore. It is true that in Brown v. Railroad, 96 Mo.App. 164, the husband was a party to the suit, but the law of procedure ought not to and cannot change the substantive law until a statute has been passed changing such law. The husband is in privy with the cause of action of the wife. His rights arise out of the same facts and the same conditions. He cannot have greater rights than the wife by reason of the act of the defendant. The only difference is his measure of damages. (2) The cases relied upon by appellant are not in point. In Blair v. Railroad, 89 Mo. 338, it was decided that a husband has cause of action for the loss of the services of the wife, due to the negligence of another. This cause of action is not joint with the wife, and this is as far as the case holds. It does not hold that the husband's cause of action is not in privity with the wife's cause of action and arises out of the same facts. In Smith v. Warden, 86 Mo. 382, cited by appellant, the court held that the receipt given by the husband did not purport to cover his wife's cause of action, and if it could be so construed, there was no consideration for it, and no authority given by the wife for the husband to release her cause of action. In Brown v. Kennard, 13 Mo.App. 175, the court decided that when the cause of action was settled by the wife, the husband, even though a party to the suit, was not a necessary party in the settlement. The case of Brown v. Railroad, supra, is cited with approval in 106 Mo.App. 517. We respectfully submit that the Court of Appeals, in Brown v. Railroad, supra, was correct in its decision, and ask that the judgment of the lower court be affirmed.
OPINION
Plaintiff sued the city of St. Joseph for $ 10,000 damages, in that he had been and would be deprived of the society, companionship and services of his wife, Louisa Womach, was compelled to lay out large sums of money in taking care of and nursing his said wife, and for medical attendance made necessary by injuries suffered by her through the negligence of defendant city, whereby her right arm was broken at the wrist and the optic nerve of her right eye was so injured that she became totally blind in that eye and the sight of her left eye was sympathetically injured and she had been rendered a constant sufferer and invalid cripple for the remainder of her life. These injuries were alleged to have been caused to Mrs. Womach through the negligence of defendant city in the construction of a certain sidewalk, with a negligent grade, at the base of a stone wall, negligently permitted to be erected and maintained. Further, that said sidewalk lay in a sunken condition whereby, in times of snowfall, large quantities of snow were drifted and piled upon said walk and retained there, so that (given alternate freezing and thawing) said snow, by reason of the shade of the wall and the steep construction of said sidewalk, did not melt off, but became transformed into ice and ice ridges of irregular shape. Further, that said city negligently permitted a certain portion of said walk to become and remain out of repair and dangerous in that snow and ice had been allowed to accumulate and remain in uneven, irregular, rounded and slippery masses and ridges, etc., for many weeks prior to Mrs. Womach's injuries -- all of which was well known to the authorities of said city. That the duty of defendant was to remove the snow and ice from said sidewalk so that it would be reasonably safe for persons traveling thereon, etc.
Hurt on the 28th day of December, 1898, Mrs. Womach in her own right brought suit against the city for her injuries received in that accident and the pain of body and anguish of mind caused thereby. She was worsted at a jury trial and appealed to this court where the judgment against her was affirmed. [Womach v. City of St. Joseph, 168 Mo. 236.]
By its answer in the case at bar, defendant city tendered the general issue, except admitting it was a city of the second class, pleaded the contributory negligence of Louisa Womach, and followed that with a plea to the effect that the judgment in its favor in the wife's suit was res adjudicata.
Plaintiff attacked the latter plea by a motion to strike out, which being overruled, plaintiff excepted.
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