*1 respect in this af- rendered. The failure ENNIS, by Friend, Next Vena which is adverse to fords some evidence Munday, Appellant, witness, as to (b) claim of The rendered, base the value of did not services as to actual value.” TRUHITTE, E.G. Administrator of the Loye Estate Deceased, Respondent. place At no the brief is there state- judgment ment No. of the amount is con- excessive, and, therefore, sidered to be it Court of affirmatively appear appellant does not En Banc. $7,157.60 excessive. would consider ample There was evidence to show Mrs. Prentice did render and that services it
they were of substantial value. While keep true that Mrs. Prentice did not services, a matter to
record of her this was appellant in jury,
be considered Appellant
substance admits.
identify part (b) the witness referred to apparently was Dr. question
Jennings. The he answered to call the “reasonable value” worded services, proper. and that was Un-
der the circumstances we cannot $7,157.60, judgment in the amount of per- maximum
which is the amount will stand,
tomit would be excessive. respondent fifteen
If will within en-
ter in this court a remittitur in the amount $2,842.40 and of all judg- interest on the 6, 1956, judgment
ment June $7,157.60 amount of with interest from affirmed; will stand other-
June
wise the reversed
is remanded for new trial.
BOHLING and CC., con-
cur.
PER CURIAM. STOCKARD, of the Court. Sweeney, Edward Monett, V. Emory Melton, Cassville, attorneys appel- All concur. lant. *2 550 de Neosho, general rule Arthur C. and Douglas, Herbert at- City, deny the Mandcll, Kansas cisions which
Popham, Sam' against to recover a the other for torneys respondent. tort committed coverture. Mandell Popham, Popham, Thompson, 200, Rogers, Mo. S.W. 265 177 City, Trusty, & of counsel. Kansas Willott, 896, Willott v. Mo. 333 62 S.W.2d 1084, 89 43 A.L.R. Annotation A.L. BARRETT, Commissioner. 632, necessary here, R.2d is not except way, attempt a in a re limited minor,, wife, This is suit par examination the rationale de- the the estate administrator doctrine, ticular in two The action ceased husband. repeatedly is, done and there at least in damages counts, the seeks first count types certain a “trend” operation of an negligence in the Harper James, the & common-law rule. 1 pas- awas bile in which the wife Torts, 8.10, 643-647; Annotation, pp. Sec. driver, the senger and husband was the A.L.R.2d loe. cit. 647. Some damages, and the count also seeks second example, in instances which husband’s apparently, actual because intentionally a husband kills shoots or conduct, “gross circumstances, was so in the (Apitz 242, impute “to willfulness reckless” as 585), plainly demonstrate wrongdoing” wantonness and intentional trend, soundness of the but Professor Pros- allegations general, him. ser’s vehemence notwith- plaintiff wife was petition are Torts, (Prosser, standing 101,"pp. Sec. 674— by her passenger automobile driven simple negligence instances 675),^the 4:30 Plighway about husband on U. S. readily persuasive cases are not so afternoon, July o’clock satisfying. , compare See the views repairs and highway undergoing was suggested by and limitations one of the. rear of plaintiff’s ran into earlier, thoughtful most the com- critics of stopped been on the an automobile that had McCurdy, mon-law doctrine. “Torts Be-' highway flagman. the first As to Relation,” tween Persons In Domestic count, ex- charges negligence Har.L.R. this (1930). speed, cessive failure to have the automo- being dead and the action control, stop, failure bile under slacken having been instituted his adminis- speed change course of the automo- trator, upon policy the reasons of which bile, and failure to look. based, rule is being their count, to the second it is that the wife, husband and have vanished. Har- respects husband’s was these Torts, per James, p. 645; so reckless as to constitute willfulness Prosser, Torts, 674. Hamil- plaintiff wife, wantonness. The ton v. July was on permits recovery pre-marital which for a husband, Loye Ennis, died December inflicted before the mar- adminis- this action bites into riage, further the common-law May 1956. The trator and its rule basic than does court sustained administrator’s trial longer which there is no marital re- petition for the rea- motion dismiss the lation to disturb. not state which son that did granted could relief suggestion may additional One ven- friend, appealed. has her mother as next Generally is stated tured. sustaining the motion court has no trial "that damages was of view case stated to recover other prohibition fell within the petition caused the other.” 636; 27 S.W.2d loc. 43 A.L.R.2d loc. cit. Annotation In Hamilton v. Fulkerson, 589-594, supra, When Am.Jur., pp. the court Secs. 191-197. courts, quotation' turned to
pushed
many
Rogers,
from the
do
*3
rule,
case.
though
said
If there
have
even
applying
could not maintain
action
to
an
merely
that it
the wife
“did
disable
not
against the other
wrong,
for the
sue
It went further
her husband for tort.
action,
course,
of
at the
as of
accrued
and held
which between stran
that actions
time
injury
damage
of
or when the
“is
gers
tortious,
be
not torts when
would
capable
(V.A.M.S.,
of ascertainment”
§§
by
against wife. That
committed
so,
537.100),
say disability’
procedural
was not
to —
respondent’s argument,
“a cause
there was
only.
common law
The wife at ancient
of
in being
action
to survive.”
had
on which
no cause of
sue.”
action
to
Apitz
242, supra
v.
Or.
[205
frequently pointed
It has been
out that
,1043.
;
Har.L.R.,
P.2d
loc. cit.
590]
the married
acts
women’s
did not either
course,
spouse may
not
if one
sense]
expressly deny
expressly grant
or
to wife
sue the other there is no enforceable cause
right
husband,
to sue her
but it is now
action,
t
reality
but it belies
and fact
recognized
terminology
that
osay that
when the husband
there
no tort
statutes is
permissively
broad
injures
either intentionally
negligently
Fulkerson,,
cover the matter. Hamilton v.
his
'wife.
the contribution
where
supra;
1 Harper
James, Torts,
judgment creditor is
of one 8.10, p. 643; Prosser, Torts,
whom
the tortfeasors
contribu
interesting
diverting
And se'e the
sought, liability
tion is
is denied because
Smith,
discussion in Smith v.
person
no
“had
enforceable
day
decided
the same
right
the latter.” Annota
action
judge
written
the same
who wrote the
tion
HYDE, J., concurs. concur, except EAGER, J.,
All who dis- filed; opinion HYDE, separate
sents
J., dissenting who dissents and concurs in EAGER, J.
EAGER, Presiding Judge (dissenting). Percy STATE Missouri rel. ex agree I M. LUD with statement the fore LOW, Ludlow, Ann Rice and Continental reality” .opinion going that it “belies Company, Corporation, Respondents, Oil neg no tort when the husband intentionally injures wife; ligently have, but, whatever our courts GUFFEY, Mayor City William F. as years, Groves, Municipal period imposed Corpora of Webster long over a tion; Guffey, Ficke, William F. Ward Har disability upon the wife strict rule of for Thomas, Knight, Benjamin old E. E. suing from the husband bidding her Moran, Carter, Charles Salveter, John H. Earl Apparently, torts. of states City as Members Council such a think still adhere to rule. City Groves, Municipal of Webster public policy. a sound is based Corporation; Huntsman, Frank C. as Building Inspector Building perhaps Commis is true that City Groves, Webster sioner
violate that rule to the same extent as does Municipal Corporation; Healy, and E. H. the decision in Hamilton v. City City Clerk of the of Webster S.W.2d That case was decided in Groves, Municipal Corporation, Appel Division One this court and the writer lants. part had no in it. No. 45617. (Torts Ed., Prosser stated 2nd 101, p. 675)', the liberalizing of this rule Court “encouraged by En Banc presence insurance * * That, me, bile cases is a very poor reason for changing the rule. there are
It is true that somewhat logical
arguments change-; in favor I fear of.