Thomas v. Wabash, St. Louis & Pacific Railway Co.

Practice — Instruction—Damages—Case Adjudged. — Where a/ suit for damages was brought by a married woman with her husband as nominal plaintiff, for personal injuries received while a passenger upon one of defendant’s freight trains, and it was averred that she was so disabled by the injury as to be wholly unableto attend to her ordinary household duties, the court instructed the jury, in substance, that the age and situation of the plaintiff, and the extent to which she is disabled, if at all, should he taken into consideration by the jury. Held, that the instruction, in view of the evidence, was not such as to work any substantial injustice to defendant. That it was proper to consider the age, as it might have much to do with the extent of the injury, and that the use of the word “ situation under the evidence in this case, worked no injury to defendant Philips, P. J., dissents.

Appeal from Macon Circuit Court, Hon. Andrew Ellison, Judge. Statement of case by the court. This action was instituted in the circuit court of Macon county, Missouri, by Mary Thomas, a married woman, with her husband joined as a nominal plaintiff, as required by section 3468, of the Revised Statutes, to recover the sum of five thousand dollars damages for certain personal injuries alleged to have been received by said Mary-Thomas while a passenger upon one of defendant’s freight trains from Pry to Kirksville, in Adair county, on the twenty-ninth day of May, 1882. Among other averments in the petition was the following: That plaintiff was thrown with such violence “from the seat in said caboose, on to the floor of said caboose, whereby the said plaintiff, Mary Thomas, was-greatly cut, bruised and wounded in and upon her body, so that she became, and was, sick and sore, and was for a long time confined to her room and bed, and suffered great pain in body and mind, and was wholly unable to attend 'to her ordina/ry household duties, and she still remains sick and injured, as aforesaid.” The following instruction was given for plaintiff: “ 4. . The jury, in estimating the damages of plaintiff, Mary Thomas, should take into consideration the age and situation of the plaintiff, her bodily suffering, if any, and mental anguish resulting from the injury received, if any, the extent and permanency of her injury, if any, and the extent to which she is disabled, if at all, but in no case should the damages exceed five thousand dollars.” I. The fourth instruction, given for the plaintiff,, authorized the jury to assess damages in a suit by the wife, upon a cause of actiou not in issue, and which belonged to the husband alone. Smith v. Qity of St. Josephy 55 Mo. 456 ; Daily v. Houston, 58 Mo. 361; Barnes n. Marten, 15 Wis. 270; 2 Sedg. Meas. Dam. (7 Ed.) 525; Cooley on Torts, 226 ; 2 Woods Railway Law, 1245. II. There was neither averment nor proof of the loss of wages of wife; but only that since her injury she was unable to perform her usual household avocations. The instruction was faulty and misleading. Daily v. Houston, supra. I. In actions for personal injuries to a wife, a jury should take into consideration all damages to which she is entitled, as bodily injury sustained, the pain undergone, the effect on health as likely to be temporary or permanent. The instruction complained of did not go beyond this. 3 Suth. on Dam., 280, 281, 713-724; Karr v. Barks, 44 Cal. 46; 2 Thomp. on Neg., 1240, 1259. II. The Missouri statute has largely emancipated married women, and fully warrants the instruction. Rev. Stat., sect. 3296; Westlake v. Westlake, 9 Reporter, 17; Klori v. St. Louis, 3 Mo. App. 240. III. The tendency of modern legislation is to establish the right to recover injuries to her person, as the wife’s separate property, and if a married woman sustains an injury, through the negligence of a railroad company, she can recover damages for her injury and suffering. Klien v. Jewett, 26 N. J. Eq. 476; Filer v. H. B., 49 N. Y. (4 Sick.) 47; Barger v. Jacobs, 21 Mich. 215.