Summary
In Rea v. Feeback, 244 S.W.2d 1017, 1019 (Mo. 1952), the court found an instruction prejudicial in a suit brought by the husband to recover on account of personal injuries sustained by his wife.
Summary of this case from Powers v. EllfeldtOpinion
No. 42312.
January 14, 1952.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, DIVISION NO. 3, THOMAS J. SEEHORN, J.
Paul C. Sprinkle, William F. Knowles, Roy F. Carter, Sprinkle, Knowles Carter, Kansas City, for appellant.
T. James Conway, S. David Trusty, Sam Mandell, Kansas City, for respondent. Popham, Thompson, Popham, Mandell Trusty, Kansas City, of counsel.
This is an action by a husband, W. C. Rea, to recover $15,750 consequential damages resulting to him because of the personal injuries sustained by his wife, Cora Rea, when she was involved in an intersectional automobile-truck collision with the defendant, Lyle B. Feeback. The husband's right to recover and the defendant's liability were hypothesized upon a finding of the applicability of the humanitarian doctrine, and particularly upon a finding that the defendant saw or should have seen Mrs. Rea in peril in or near the intersection of Brooklyn Avenue and U.S. Highway 71, unable to extricate herself, and that, thereafter, he could have slackened the speed of his truck or swerved it and thereby have avoided the collision and the injuries to plaintiff's wife. Upon the trial of the cause a jury returned a verdict in favor of the defendant but the trial court sustained the plaintiff husband's motion for a new trial upon the ground that the court had erred in instructing the jury and the defendant, Feeback, appeals from the order granting the new trial. The plaintiff's evidence demonstrated the hypothesized cause of action under the humanitarian doctrine and the sole question upon this appeal is whether the trial court erred in granting the plaintiff a new trial because of error in instructing the jury.
At the behest of the defendant the court gave, among other instructions, instruction D: "The Court instructs the jury that the plaintiff's right to recover herein on Count One is dependent upon the right of the wife to recover for her injuries so, therefore, if you find and believe from the evidence that the plaintiff's wife could not recover against the defendant herein for her injuries then you are instructed that your verdict shall be for the defendant herein." In justification of the instruction the appellant makes the following argument, and in determining whether it was prejudicially erroneous we accept, for the purposes of this appeal, the appellant's interpretation of its meaning. It is said that the instruction in effect told the jury that the husband "stood in the same relationship with the defendant as far as negligence of the defendant is concerned as his wife would if she had brought the action in her own name. In other words, if plaintiff's wife was not entitled to recover under the evidence then the plaintiff would not be entitled to recover." It is first stated that had this case been submitted on primary negligence, that this instruction would have meant "that the contributory negligence of plaintiff's wife would have barred a recovery by the plaintiff in this action." It is then said to follow in the second place, since contributory negligence on the part of the wife would bar the husband's right to recover, that "it naturally follows that under a humanitarian negligence case if the plaintiff's wife was not in a position of imminent peril in time for the defendant to have seen and taken some action towards avoiding the accident then the plaintiff's wife would not be entitled to recover and in turn the plaintiff would not be entitled to recover." In summary, the appellant's argument is that the instruction "merely tells the jury that the husband must stand in his wife's shoes in the action he brings for loss of services and medical expenses in a case submitted under the humanitarian theory even as he does in a primary negligence case."
The appellant's argument unnecessarily confuses several unrelated matters and does not accurately state or precisely delimit the principles necessarily involved. A husband may not recover the consequential damages resulting to him on account of his wife's injuries unless the defendant has committed a tort which would give a right of action to the wife, 41 C.J.S., Husband and Wife, § 401, page 895, as in this case, unless the husband's evidence shows that the defendant, Feeback, negligently injured the plaintiff's wife. Stoll v. First National Bank of Independence, 234 Mo. App. 364, 132 S.W.2d 676. But, a negligently inflicted personal injury to a wife immediately gives rise to two independent causes of action, one for injury to the wife and the other in favor of the husband. Hopkins v. Mobile O.R. Co., Mo.App. 33 S.W.2d 1009 Thompson v. Metropolitan St. Ry. Co., 135 Mo. 217, 36 S.W. 625. Both suits result from the same injury to the wife "but the causes of action are separate, and each an entirety unto itself." Womach v. City of St. Joseph, 201 Mo. 467, 486, 100 S.W. 443, 448, 10 L.R.A., N.S., 140. As an abstraction the instruction does not clearly and explicitly set forth or explain these applicable principles to the jury. Furthermore the appellant tacitly concedes, as was said in the beginning, that the husband's evidence demonstrated a cause of action under the humanitarian doctrine, a tort or negligence by the defendant with respect to the wife's injuries. The cause was properly and appropriately submitted upon that theory alone and consequently contributory negligence has no place in the case. George v. Allen, Mo.Sup., 245 S.W.2d 848. For Missouri cases concerning the subject, despite counsel's assertions, see Haverkost v. Sears, Roebuck Co., Mo.App., 193 S.W.2d 357; Carney v. Chicago, R.I. P. Ry. Co., 323 Mo. 470, 23 S.W.2d 993.
The instruction involved here directs a verdict for the defendant upon a mere finding "that the plaintiff's wife could not recover against the defendant herein for her injuries" and so, at best, we have a legal question abstractly submitted to the jury without limitation or qualification as to any issues of fact involved, Gillioz v. State Highway Commission, 348 Mo. 211, 153 S.W.2d 18, either on behalf of the plaintiff or the defendant. State ex rel. Grisham v. Allen, 344 Mo. 66, 124 S.W.2d 1080. The instruction is confusing and whether and how much it was misleading or prejudicial because of its abstract generality is a matter peculiarly addressed to the trial court's discretion. Morris v. E. I. Du Pont De Nemours Co., 351 Mo. 479, 173 S.W.2d 39. There are other objections to the instruction, but it was erroneous as indicated, and the trial court has found that it was prejudicially erroneous and in so finding it cannot be said that the trial court abused its discretion. Hensley v. Dorr, Mo.Sup., 191 S.W.2d 663; Rasp v. Baumbach, Mo.Sup., 223 S.W.2d 472.
Having found that the trial court did not err in granting a new trial because of the erroneously prejudicial effect of instruction D, it is unnecessary to consider also whether instruction C was prejudicially erroneous. Blanford v. St. Louis Public Service Co., Mo.App., 199 S.W.2d 887. The appellant is familiar with the objections to the instruction and may be governed accordingly.
The order granting a new trial is affirmed.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.