175 Mo. App. 653 | Mo. Ct. App. | 1913
Lead Opinion
This is a suit for damages alleged to. have accrued to plaintiff wife through the loss of companionship, comfort and support of her husband entailed as a result of the negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
Defendant, an incorporated company, owns and operates a coal mine, and plaintiff’s husband was- in its employ as a coal miner at the time of his injury.
It appears that the neck of the miner’s room where plaintiff’s husband was injured, like the main entry of the mine, is in the care and keep of defendant, while the security of the room or working place of the miner is to be looked after by the miner himself. It is, therefore, conceded throughout the case that the obligation to exercise ordinary care with respect to the reasonable safety of the roof of the nock of the room from whence the rock fell rested upon defendant. The evidence tends to prove that defendant was remiss in the matter of inspecting the roof of the neck of the room and securing it from the fall of rock and that plaintiff’s husband was injured as a result of defendant’s negligence thereabout.
The sole question for consideration relates to the right of recovery in the plaintiff wife as for consortium —that is, for the loss of the society, companionship, and also the aid and support of her husband during the time he was so incapacitated. No case has been cited revealing such a recovery on the part of the wife to have been sustained, where the deprivation of the society, companionship, aid, comfort and support of her husband was occasioned through a mere negligent tort. Moreover, after considerable research, we have found none to that effect and the authorities seem with
That she may recover under the Married Woman’s Statute in her suit for loss of the companionship, society, aid, comfort and support of her husband of which she is deprived through an intentional tort, as by the alienation of his affections, is not open to question; this for the reason that such alienation of affections and the loss it entails involves a violation of her “personal rights.” [See Clow v. Chapman, 125 Mo. 101, 28 S. W. 328 ; Nichols v. Nichols, 147 Mo. 387, 48 S. W. 947.] It has been heretofore determined by this- court that the wife may recover, too, for the loss of society, comfort, companionship and aid and support of her husband of which she is deprived by the wilful act of a defendant who, by constant annoyance and threats, occasions his insanity. [See Clark v. Hill, 69 Mo. App. 541.] These judgments obviously proceed on the theory that the loss to be compensated results from the violation of the “personal rights” of the plaintiff wife from whom the husband has been enticed or driven away through wilful and intentional conduct on the part of defendant. In this view, it is said the “personal rights” of the wife to have the companionship- and support of her husband have been .directly invaded and therefore the tort involved is a wrong perpetrated upon her. The proposition is entirely sound in those cases in
It is difficult to square the principle reflected in Clark v. Hill with the rule of decision which obtains in cases of the character of this one; but be that as it may, that case is not directly in point here, for it certainly does not involve a negligent tort; on the contrary that tort was intentional and malicious. However, the question is confused and we are much embarrassed by the judgment in-that case. The authorities with one accord deny the right' of the wife to recover for the loss of the society, aid, comfort and support of her husband, as in this case, where, he is but temporarily incapacitated through the negligence of another, on the ground, as we understand it, that the tort involved is a wrong inflicted directly on the husband to whom the cause of action accrues and that the loss of the wife sought to be compensated therein is merely consequential. In other words, it is reasoned that such loss of society and support does not amount to a violation of her “personal rights” under the Married Woman’s Statutes, but rather that the tort is against, and the injury to, her husband, to whom alone compensation should be made; for her right, derived through the marital relations with him, is jemote~ and therefore not a subject for juridical consideration
The judgment should be reversed. It is so ordered.
Concurrence Opinion
CONCURRING OPINION.
I concur entirely in the result reached by my Brother Nortoni but think that we should expressly overrule so much of the decision of our court in Clark v. Hill, 69 Mo. App. 541, as holds that a like action can be maintained. That was an action by the wife for damages sustained in the loss of the support and association of the husband, it being alleged that he was driven insane by threats of violence made by defendant. Obviously, as pleaded and proven there, it was not a tort directed against the wife; not an intentional tort as against her, such as are cases of alienation of the affections of the husband and the like. Clark v. Hill rests, on this proposition, alone on the decision of our Supreme Court in Clow v. Chapman, 125 Mo. 101, 28 S. W. 328. That was an action for alienation of the affections of the husband, a tort