280 S.W. 441 | Mo. Ct. App. | 1926
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 $1986. 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 $1500. 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 $1986, of which $486 was for expenses incurred by the husband for the wife, and $1500 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 $1500 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. *540
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, comforts 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, in the same manner and with like effect, in all respects, as actions founded upon contract."
Section 98 reads thus:
"The preceding sections 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 administrator."
In the early case of James v. Christie,
It is instructive to follow the consideration of the James case by a reading of Stanley v. Vogel,
In Gilkeson v. Railroad,
"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. Christie,
Thus our Supreme Court construes the language of section 97 of our Statutes as omitting the comma between the words "property" and "rights" in the phrase "property, rights or interests." The court said the phrase should be read "property rights or interest," and not "property, rights or interest." Plaintiff, of course, had a cause of action against the defendant for loss of his wife's comfort and society resulting from her injury through the negligence of the defendant, but the question then is whether such cause of action is for wrong done to the "property rights and interest" of the husband which survive to his estate. We think such rights are purely personal and domestic rights which do not survive by any force of sections 97 and 98 of the statutes, which apply to "property rights and interest" only. And we believe we have a fulcrum for that view in the following Missouri cases: Freie v. Railroad,
New York has similar statutes as our sections 97 and 98, though the courts there have construed them as protecting pecuniary rights and interests and not as our courts have held that it covers property rights and interests only. In Cregin v. Brooklyn C.T.R. Co., *543
Appellant's learned counsel relies upon the case of Primm v. Schlingmann,
The court was correct in granting a new trial for erroneously admitting those elements in the instructions to the jury. Judgment affirmed and cause remanded. Becker and Nipper, JJ., concur.