Bernhardt v. Perry

208 S.W. 462, 276 Mo. 612, 13 A.L.R. 1320, 1919 Mo. LEXIS 60

• Court: Supreme Court of Missouri
• Decided: January 25, 1919
• Status: Published

Opinions

WOODSON, J.

The plaintiffs brought this suit in the Circuit Court of the City of St. Louis against the defendant, to recover $15,000 damages done the female plaintiff for personal injuries alleged to have been negligently inflicted upon the plaintiff, George Bernhardt, her huband-

The defendant filed a demurrer to the petition, which was by the circuit court sustained; and the plaintiffs declining to plead further, judgment was entered for the defendant, and in due time and in proper form the plaintiffs appealed the cause to this court.

The petition was as follows:

“Plaintiffs state that at all times hereinafter mentioned and at the time of the filing of this petition, they were inhabitants and residents of the City of St. Louis and State of Missouri, and at all such times were lawfully married and living together as husband and wife. That at all the times hereinafter mentioned the defendant was the owner and holder of the record title of and to certain real estate being, lying and situate in said city and State and being improved with a--story apartment building thereon, said property being described as follows:

“Lot 18 and the western 22 feet of lot seventeen of Fullerton’s Subdivision, in City Block 4576, fronting together 65 feet upon the Westminster Place by a depth of 144 feet and 11 3/8 inches to an alley.

“For cause of action plaintiffs state that on or about the 1st day of February, 1907, defendant herein employed and hired the said George Bernhardt as janitor, fireman and engineer at and for said apartment building aforesaid, and that among other things it was his duty to clean the firebox, boiler and other portions of the heating apparatus of said apartment building and to care for and tend same. That shortly after being employed or hired, as aforesaid, to-wit, within about two weeks thereafter, it became necessary for the said Bernhardt, in the discharge of his duties in and about said building, to clean the boiler and heating apparatus of said building, and that in order to promptly perform said duty with the appliances at hand which had been furnished to him by the said defendant, it became necessary for him to attach a hose pipe or other similar appliance to said boiler or heating apparatus, and upon turning the hot water or the steam from the same into said hose, pipe or similar appliance for the purpose of carrying the same off from said boiler or heating apparatus, the said hose, pipe or other similar appliance, by reason of its broken, defective, worn-out, rotten, decayed and insecure and unfit condition, broke or bursted or exploded at or near its jointure with said heating apparatus or said boiler, causing the steam or boiling water of said boiler or heating apparatus to be thrown and hurled in all directions, and on and upon the said Bernhardt, and to cause the said Bernhardt to become temporarily blinded, which said explosion and bursting of said hose, pipe or other similar appliance inflicted upon said Bernhardt injuries hereinafter more particularly described as follows:

“The said Bernhardt’s lower limbs, abdomen, and other parts of his body came into contact with and remained for several minutes in the scalding, boiling water, by reason whereof he was confined to his bed continually for a period of one year or more, during all of which time and for many a week, he was compelled to be wrapped and kept in cotton and other bandages; that for a long period of time he suffered indescribable and - excruciating pain; that portions of the flesh on his lower limbs and other parts of his body became seared and peeled off and broke out into open and running sores, giving and causing him additional pain and suffering; that said George Bernhardt suffered great loss of sleep for days and weeks at a time, so that, owing to the great and constant pain he was in, it became necessary for weeks after receiving his injuries .as aforesaid, to administer to him morphine and other opiates in order to induce sleep, rest and quiet; that .for a long time immediately following said injuries said George Bernhardt suffered great mental agony lest he would not survive said injuries, and was in constant fear and apprehension lest blood-poisoning would set in in the injured and scalded parts of his body as aforesaid. That upon being able to leave his bed after a period of about one year, as aforesaid, said George Bernhardt was able to move about his room and his house for several weeks only by means of crutches, or in an arm chair, which crutches and chair he was compelled to use for a long period of time; that upon being able to discard said crutches, he was able to get around the house or to walk with the use and assistance of a cane, and then only for short periods of time; that ever since receiving said injuries and up to the time of the filing of this petition said George Bernhardt has been unable to bend or raise his right lower limb or to have any use thereof without great pain, and has been unable to walk up or down stairs or even for a short distance, without great pain and suffering; that the nerves in his said lower limbs have become hardened, thereby causing him additional pain and greatly impeding his movements; that it was necessary for him to be treated at various hospitals in the City of St. Louis for a long period of time immediately following the time hereinafter mentioned; that up to the time of this petition his left lower limb is still an open and running sore, causing him great pain and anguish; that he will for a long time suffer great pain and agony and will never be able to follow his usual occupation of working as a janitor, fireman or engineer in and around apartment buildings, and will for all time to come be permanently disabled from engaging in any and all kinds of work or occupation whatsoever.

“That by reason of said injuries the vital organs of his body have become affected, and their usefulness greatly impaired and his normal expectancy in life greatly diminished.

“That the injuries inflicted upon the said Bernhardt as aforesaid were caused and brought about by the negligence of the defendant in this, to-wit;

“First. That the defendant, wholly disregarding his duty to furnish to said Bernhardt a reasonably safe and secure and proper appliance with which to work in and about his duties as aforesaid, did furnish to said Bernhardt a hose, pipe or other similar appliance which at the time aforesaid was in a decayed, rotten, defec■five, insecure, worn-out and unfit condition for which said Bernhardt was to use the same, in and about the discharge of his duties as aforesaid, the defendant at the time knowing, or by the exercise of ordinary care on his part should have known, of such defective or otherwise unfit condition of said appliance for the purpose for which it was to be used.

“Second. That the defendant, wholly disregarding his duties to said Bernhardt, failed to warn said Bernhardt of the danger he was in in using in and about the discharge of his duties, as aforesaid, said hose, pipe or similar appliance which at the time was in a decayed, defective, rotten, insecure, worn-out or otherwise unfit condition, and which condition of said appliance was known, or by the exercise of ordinary care on his part, should have been known to the defendant in ample time to have warned said Bernhardt of said danger in the use thereof.

“Third. That the defendant, wholly disregarding his duty to the said Bernhardt to furnish Mm with a reasonably safe, secure and properly lighted place in which to work while in and about the discharge of his duties as aforesaid, did require said Bernhardt to discharge his said duties in a place which was narrow and ill lighted and which place had been allowed by the defendant to become filled with ashes and coal so as to obstruct the ordinary and proper ingress and egress from immediately in front of and around the said boiler or heating apparatus, and which said ill-lighted and obstructed condition of said place wherein said Bernhardt was working was well known to defendant, or by the exercise of ordinary care on his part would have become known to him.

“That by reason of such ill lighted and improper condition of said room or place wherein the said Bernhardt was at the time aforesaid, it was impossible for him to escape from the same in order to have lessened the danger he was in or in order to extricate himself therefrom.

“That by reason of said injuries inflicted upon, said Bernhardt as aforesaid, and as a direct result thereof, plaintiff, Emma Bernhardt, has been damaged in the following particulars, to-wit:

“She has lost a great amount of sleep in worry and anxiety on account of the physical condition of her said husband and in watching over him and caring for him; she has been caused great worry and anxiety by reason of the fact that her husband is incapacitated so that he will never be able to engage in his usual occupation; that she has suffered on account of the .inability of her said husband to have and enjoy the ordinary and customary use of his feet and limbs and other vital parts and organs of his body, and that she will suffer in the future in this respect; that by reason of the physical and mental condition of her said husband she has suffered in mind and body and her health and strength have been impaired and her nervous system greatly shocked and undermined; that she has been denied care, protection, consideration, companionship, aid and society of her said husband which he would have rendered to her had such injuries not occurred, and that in the future she will be denied the same; that she has been denied the pleasure and assistance of her said husband in escorting her to places of amusement and in visiting friends and relatives, and will for all time to come be compelled to forego the same; that she has been required to remain at home for long periods of time and to deny herself to friends and relatives and will for all time to come be much confined to her home and he required to deny herself to her friends and relatives; that for many weeks following the time of said injuries, she had had to forego and give up her-*-and the customary work of a housekeeper and to lose and forego the earnings which she derived from such occupations; that by reason of the delicate physical and mental condition of her husband she will for all time to come be unable to engage in such work or to have and enjoy the earnineu therefrom.

“Wherefore, plaintiff prays judgment in the sum of fifteen thousand dollars, together with costs of this action. ’ ’

Misjoinder I. There was no misjoinder of parties plaintiffs, ^or ^ie statutes of this State expressly allow the -wife to sue with or without joining her husband. [Secs. 1735 and 8304, R. S. 1909.]

Limitations. II. The plaintiff’s cause of action, if she had one, was not barred by the Statute of Limitations. She was a married woman and hence the five-year Statute of Limitations did not run against her. [Sec. 1894, R. S. 1909; Bobb v. Taylor, 184 S. W. 1028; Lindell Real Estate Co. v. Lindell, 142 Mo. 61.]

Action.0* III. Counsel for the plaintiffs concede that at common law the wife could not sue for injuries sustained by the husband, whether they resulted in his death, or partially or totally incapacitated him from the performance of his marital duties toward her; but contend that in case of his death the Damage Act transfers his cause of action first to the widow, and second to his minor children. [Secs. 2864 and 2865, R. S. 1899, amended, and now Secs. 5425 and 5426, R. S. 1909.]

It is also practically conceded, as I understand counsel, that neither of these statutes creates the cause of action in favor of Mrs. Bernhardt she here sues on. But the contention of counsel is that Section 4340, Revised Statutes 1899, which was in force at the time of the injury, now Section 8309, Revised Statutes 1909, creates the cause of action, or perhaps more accurately speaking, gave the wife the right to sue for the wrongs stated in the petition which it is contended at all times belonged to her under the common law, but that said law provided her no remedy.

To say the least, this statute does not in express terms g-ive the wife the cause of action sued on, nor does it authorize her to sue for damages for personal injuries sustained by the husband whether they result in his death or not; if in death, clearly, she could not sue under this statute, but would have to sue, as the/ case might be, either under Section 5425 or 5426 Revised Statutes 1909, of the Damage Act; this has been so held many times by this court.

But counsel for the plaintiffs contend that since said Section 4340 gave the wife the right to sue a third person for the alienation of her husband’s affections,, then for the same reason it should be held that it gives her the right to sue for the injuries sued for in this case — citing Clow v. Chapman, 125 Mo. 101.

It is true that this court in that case held that the wife could sue and recover from a third -person damages for the alienation of her husband’s affections; but it seems to me that counsel misconceives the fundamental difference between the rights of a wife growing out of a personal injury to her husband and those growing out of the alienation of his affections.

We will consider those questions in the order stated.

In the former case the injury is physical, or grows out of a physical injury done to the husband, and he, if death does not ensue, is entitled to a recovery of damages resulting therefrom, which, in legal contemplation, is supposed not only to make him whole, but enables him to support his wife and children and to discharge all of his marital and parental duties due them in the same degree that the law imposed those duties upon him previous to the injury, leaving no right of theirs, if any, violated, which has not been fully compensated; such was the common law. And, in the second place, where the injury mentioned resulted in the death of the husband, he, of course, being unable to sue for and recover the damages sustained, the Legislature, recognizing the duties the husband owed the wife, and the father to the children, enacted the statute reviving or transmitting, to the wife in the first instance and the children in the second, the cause of action the husband would have had against the tortfeasor, had he lived, to the extent of their rights to his support and maintenance; but all of the rights of the husband, wife and children were and are, by the common law and under the statutes, limited to said pecuniary losses, and did not extend to or include the loss of society and ‘ ‘ consortium. ”

All of the authorities so hold, as I understand them, and no contention to the contrary is here advanced.

The foregoing refers to injuries done to a person, and briefly outlines the persons who under the common law and statutes may recover the damages flowing therefrom, as well as the character and extent of such damages. The wife has no other rights under the laws of this State.

This brings us to the consideration of the rights of a wife growing out of the alienation of the affections of her husband. In this action the husband is not injured physically or otherwise, within the meaning of the law, however far he may have strayed from the moral path of rectitude. His conduct in such a case is the result of his own assent, and of course he would have no standing in a court of justice to recover damages, if any, inflicted thereby. But not so as to the wife.

Under the Married Woman’s Act, of 1889, the wife was completely severed from her husband regarding her personal and property rights, as though she was a femme sole, nothing more nor nothing less. [Clow v. Chapman, 125 Mo. 101.]

It is elementary that the wife is entitled to the protection, support and society of her husband; those ¡rights are the corollaries of the marital duties the husband owes his wife, and she, under the act mentioned, could sue him in an ordinary action of law or equity for the violation of the two former, and in a suit for a divorce for the violation of the latter; and by parity of' reasoning she can also, under that act, in a suit for alienation, sue a third person for wrongfully depriving her of any or all of those rights. [Clow v. Chapman, supra.]

But in an action of this character, the fact must not be lost sight of that the wrong she complains of is committed against the wife and not against the husband, as is the case in an action for personal injuries sustained by the husband; for that reason, and for the further reason that in this character of actions the alienation deprives her of all of her said rights, she i may sue in the first instance either her husband, as before stated, or she may sue any third person who may deprive her of those rights.

It is, however, a non sequitur to say because the wife may maintain an action for damages against a third person for the alienation of her husband’s affections, resulting in the loss of his protection, support and society, she may for like reasons maintain the suit at bar,, where the injury is done to him and not her, and where he can recover full compensation therefor, which enables him to perform all of his duties to her, save perhaps his social duties; and I seriously doubt if the law imposes any purely social duties upon him the breach of which would sound in damages against him, save constituting sufficient grounds for divorce and alimony. But be that as it may, it is perfectly clear that neither at common law nor under the statutes whereby the cause of action is transmitted to her, can she, in a case of this character, even where the husband is killed, recover from the wrongdoer damages for the loss of her husband’s society. All of the decisions so hold.

And if it were not for the Damage Act of this State transmitting to her the cause of action upon the death of her husband, she could not, at this day, recover from the wrongdoer, compensation for the pecuniary losses she sustained, much less for the loss of the society of her husband. [Elliott v. Railway, 67 Mo. 272.]

IY. There is another view to take of the contention of counsel for the plaintiffs and that is this:

Damages. If Section 4340, Revised Statutes 1899, gave Mrs. Bernhardt a cause of action for the damages she sustained as a result of injuries to her husband, then she could receive double compensation for the same and from the same In the fh'st place, her husband would recover full compensation for all injuries he sustained, which includes the physical injury' done to his person and the pain and mental anguish suffered, the loss of earning capacity, doctor bills, etc., and in addition he would recover for all injuries to his “vital organs” and for being incapacited to care for, associate with and protect her, as well as being deprived of his right to consort with her. This would make him whole, asj much so as it would be possible to do, within the contemplation of the law; with those damages collected he would be just as able to perform all of his marital duties and obligations to her as if he had never been injured; and the law presumes he would discharge i' those obligations to the best of his ability, which ■ would fully compensate her for all damages she had received; but if he should not do so, then she would;' have her legal remedy against her husband and not'! against the person who injured him. But notwithstanding this full compensation he is supposed to have,! recovered and which he must expend upon her for her1 proper care, support, maintenance, etc., yet, if she! is authorized by said Section 4340 to recover from the defendant in this action, then she would recover from the same wrongdoer the damages she had sustained for the same injuries her husband had recovered for, and out of which, as before stated, he is legally bound to support, maintain and care for her. This would be double compensation, which in my opinion the Legislature never intended.

Again, if this Section 4340 gives the wife the right to recover the damages sued for in this case, then where the husband is killed why may she not sue under this section for the damages here claimed, and also under Section 5425 or 5426, Revised Statutes 1909, of the Damage Act, for the penalty and damages there provided for? I submit that there is no valid reason why she might not recover under both statutes, especially in so far as the penalty mentioned in Section 5425 is concerned; neither section contemplates that the compensation recovered under the one should be set off against that collected under the other. I see no good reason for saying the one might be set off against the other, if both are given to her by different statutes. But clearly this was not the design of the Legislature, as expressed in the Damage Act or in the Married Woman’s Act. But independent of the foregoing observations, let us briefly examine this Section 4340, and see from the language thereof if it is possible even in the light of the Clow-Chapman case to place the construction thereon contended for by counsel for the plaintiff.

A careful study of this section will show that it does not undertake to create any new rights or give any new cause of action to the wife, but simply provides that all of her property, real and personal, including rights in action belonging to her before marriage, or which come to her during coverture, by gift, bequest or inheritance or by purchase with her separate means, or be due as the wages of her separate labor, or has grown out of any violation of her personal rights, shall, together with all income, increase and profits thereof, be and remain her separate property and under her separate control and shall not be liable to be taken by any process of law for the debts of the husband,

In construing- this statute, we must hear in mind that at common law the wife might own and possess real and personal property; in divers ways, she might acquire and become the owner of the various choses of action mentioned in this statute; and the husband had a rig'ht of action to recover damages growing out of the violation of her personal rights, all of which, except the real estate at common law, upon being reduced to possession, became the property of the husband, but none of which belonged to him absolutely until reduced to possession by him; until then all belonged to her. The object of this statute was to prevent the husband from reducing her property to his possession and to prevent him from suing for and recovering the damages she suffered for the violation of her personal rights, thereby preventing him from becoming the owner thereof, by providing that they shall “be and remain her separate property and under her sole control,” just as they were at common law before he reduced them to possession. In other words, the intention of the Legislature was to prevent the husband from reducing his wife’s property and choses in action to possession and thereby becoming the owner thereof and to enable her to retain the possession and ownership thereof separate and apart from him. This is not only the spirit and meaning of this statute, but almost the letter thereof as well. But as regards the kind of action she must bring in order to protect her personal rights and property therein mentioned or to redress any wrong that might be done thereto resort must be had to the Practice Act, as this statute is wholly silent on the subject.

In my opinion no such idea was contemplated by the Legislature, nor did it intend to give the wife double compensation as before suggested. There is no statute or common-law rule in this State which lends countenance to any such idea, but the purpose was to let her retain that which belonged to her.

Finding no error in the record, the judgment of the circuit court is affirmed.

Walker, Faris and Graves, JJ., concur; Blair, J., concurs in result; Bond, G. J dissents in separate opinion, in which Williams, J., concurs.