102 Mo. 669 | Mo. | 1890
— The evidence and instructions in this' action, relating to the issue of defendant’s negligence toward Mrs. Furnish as a passenger upon its railway, .are in all material particulars identical with the evidence and instructions discussed in Furnish v. Railroad, ante, p. 438; 13 S. W. Rep. 1044. So far as concerns that branch of this case it is unnecessary to reiterate the rulings then announced.
Several other errors are now assigned, however, involving points not presented in that action but peculiar to this.
II. Defendant claims that the trial court erred by instructing the jury to allow plaintiff such sum as the •evidence showed would compensate him for the ‘ ‘ loss of society and companionship of his wife.”
The objection is placed upon two grounds. It is first asserted that there was no loss to plaintiff of the .society or companionship of his wife, because, though injured, she was yet with him and he therefore had the benefit of her society. But the answer to that contention is that, as her husband, he was entitled to her ■society as she was when the negligence of defendant impaired her strength, her health and her usefulness as .a helpmate. Though he may still be with her and her 'Companionship may be even more dear to him since her injury, because of her very helplessness and need of his attention, yet that does not diminish the legal wrong he has suffered from the acts which produced that condition. He is entitled to be compensated for such loss of her society as resulted from the negligence alleged.
By the term “society” in this connection, is meant :such capacities for usefulness, aid and comfort as a wife, which she possessed at the time of the injury. Any diminution of those capacities, by the acts or negligent omissions of defendant, constituted a just basis lor an award of compensatory damages therefor. Maxson v. Railroad (1889), 112 N. Y. 559 ; Ainley v. Railroad (1888), 47 Hun, 206; Jones v. Railroad (1886),
Next it is urged that, as no evidence was offered of the value of the wife’s society, the instruction should not have been given. To this it may be said that the mature of the subject does not admit of direct proof of -value and that, when the fact of loss of society is established by testimony, the assessment of reasonable compensation therefor must necessarily be committed to the sound discretion and judgment of the triers of fact.
The trial court, by the instruction, numbered 9, •excluded a recovery of any damages for loss of services of the wife, presumably because the court did not consider the petition as asserting any specific claim therefor. Whether this ruling was correct or not need not be discussed as the plaintiff makes no complaint thereof. But plaintiff’s loss of society and companionship of his wife was expressly counted upon and submitted properly to the jury by the instruction, numbered 10, as a ground of recovery.
III. It is further contended that the damages are excessive. Plaintiff expended over $800 in the necessary treatment and care of his wife to the time of the trial, and it appears from the evidence that, ever since the accident, she has been totally disabled from doing any household duty or being of any aid or assistance to plaintiff as a wife.
In view of the facts of this branch of the case (outlined in the statement preceding this opinion) we are not prepared to say that the amount of the verdict is such as justifies the interference of this court.
No other errors in the record have been suggested and finding the assignments above discussed untenable it follows that the judgment should be affirmed. It is so ordered,
