Opinion
November 12, 1936.
1. HUSBAND AND WIFE: Demurrer to the Evidence. In an action by a husband for injuries to his wife caused by a brick falling upon her head from the third story of a building, under the evidence, the court properly refused a demurrer to the evidence at the close of plaintiff's case.
2. TRIALS: Instruction. In an action by a husband for damages caused by injuries to his wife, an instruction authorizing a verdict for plaintiff which did not require a finding that the plaintiff suffered loss and damages from the wife's injuries, was erroneous.
But where another instruction told the jury if they should find the facts hypothesized in the first instruction they should render a verdict which would reasonably compensate him for the direct loss sustained by any impairment the wife sustained as a direct result from the injury, her inability to perform her regular domestic duties as plaintiff's wife and for loss of her society and companionship, etc., the two instructions taken together define, though awkwardly but correctly, the duty of the jury and read together they do not constitute error as to require reversal of the judgment.
3. EXCESSIVE VERDICT. Where plaintiff sued for damages caused on account of injuries to his wife which deprived him of her aid in her domestic duties, her society and consortium, a verdict for $22,191 was excessive and should be reduced to $10,000.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. McElhinney, Judge.
AFFIRMED ( upon condition).
Fred H. Blades, Moser, Marsalek Dearing and Wm. H. Allen for appellant.
(1) Since plaintiff's own proof was such as to permit no inference other than that the falling of this piece of brick upon his wife was directly and proximately due to the opening of one of the revolving windows of this building by some one on the third floor thereof — who, under the circumstances, may well have been some one for whose act defendant was not responsible — plaintiff was not entitled to invoke the res ipsa loquitur rule. Conduitt v. Gas Electric Co., 326 Mo. 143; Price v. Met. St. Ry. Co., 220 Mo. 456; Porter v. St. J. Ry., L., H. P. Co., 311 Mo. 76. McAnany v. Shipley, 189 Mo. App. 396. (a) And since plaintiff cannot rely upon the res ipsa loquitur rule, if from plaintiff's proof it may be said that any presumption or inference may arise that the window was negligently opened by some one for whose act defendant would be responsible, such presumption or inference, if any, disappeared upon the coming in of defendant's proof showing that the act causing the injury, namely, the pushing outward of the sash of the window, was not the act of any agent or employee of defendant, but that of a trespasser on defendant's premises, an intruder or interloper who had no right to be there at all. George v. Mo. Pac. Ry. Co., 213 Mo. App. 674; Rashall v. Railroad Co., 249 Mo. 523; Burge v. Railroad Co., 244 Mo. 94; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 341, 77 L.Ed. 823; State ex rel. Kurz v. Bland, 333 Mo. 947; Gray v. Railroad Co., 24 F.2d 671. (b) To make out a case for the application of the doctrine of res ipsa loquitur, the facts relied on must be such as to reasonably exclude any other hypothesis than that of the negligence claimed. Grindstaff v. Goldberg Sons Struct. Steel Co., 328 Mo. 80; Removich v. Construction Co., 264 Mo. 43; The President Wilson, 5 F. Supp. 686. (2) The trial court erred in giving Instruction 1 at the instance and request of the plaintiff, for the reason that the instruction proceeded upon the erroneous theory that plaintiff was entitled to "compensation" for the injuries sustained by his wife, rather than for such loss and damage as he may have sustained by reason of loss of her domestic services, society or companionship, or by reason of expense incurred by him by reason of her injuries. And this instruction, while purporting to cover the entire case and directing a verdict for the plaintiff, erroneously omitted to require the jury to find an essential element of plaintiff's right to recover, namely, that plaintiff suffered loss and damage of such character as is recoverable by a husband on account of injuries sustained by his wife. Hopkins v. Railroad Co., 33 S.W.2d 1009; Alexander v. K.C. Rys. Co., 231 S.W. 66. And since this instruction omitted to require a finding of an essential element of plaintiff's case, it cannot be cured by any other instruction or instructions given. Alexander v. K.C. Rys. Co., 231 S.W. 68; State ex rel. Lusk v. Ellison, 271 Mo. 463; Hopkins v. Railroad Co., 33 S.W.2d 1011.
Walter Wehrle, Harvey B. Cox and Foristel, Mudd, Blair Habenicht for respondent.
(1) The court properly refused to direct peremptorily a verdict for the defendant, because: (a) The evidence, on plaintiff's behalf, that a brick out of the wall of the building owned by and in the exclusive possession and control of defendant fell from an upper floor of the building and struck and injured plaintiff's wife while she was on the public sidewalk, resulting in damage to plaintiff, as her husband, constituted a case for the jury under the res ipsa loquitur doctrine. Walsh v. S.W. Bell Tel. Co., 331 Mo. 125; State ex rel. Stein v. Becker, 334 Mo. 749; Kuether v. K.C.L. P. Co., 220 Mo. App. 458; Kean v. Piano Co., 206 Mo. App. 179; Manson v. May Dept. Stores Co., 71 S.W.2d 1082; 45 C.J., sec. 771, p. 1201. (b) Plaintiff's evidence did not show what caused the brick to fall. Lober v. Kansas City, 74 S.W.2d 815; State ex rel. Stein v. Becker, 334 Mo. 749. (c) Defendant's evidence could not destroy the submissible case for the jury on plaintiff's evidence sufficient under the res ipsa loquitur doctrine. Lober v. Kansas City, 74 S.W.2d 815; Conduitt v. Gas Electric Co., 326 Mo. 143; Harke v. Haase, 335 Mo. 1109; Bond v. Ry., 315 Mo. 1002. (d) Even defendant's evidence did not show the "cause" of the brick falling. It did not show how or why merely opening the window could, or that it did, cause the brick of the wall of the building to fall. Cases under (b) and (c). (2) Plaintiff and his wife at age thirty-seven have a life expectancy of about thirty years, during which he will be damaged by loss of her services and consortium. This court and the Missouri Courts of Appeals have habitually sustained verdicts for mere loss of services of children in sums proportionately much larger than the $20,000 awarded in this case, although in those cases the parents' recovery is limited by law to strict loss of services without any allowance of anything comparable to the husband's right to damage for loss of consortium. Hornbuckle v. McCarty, 295 Mo. 173; Meeker v. Union E.L. P. Co., 216 S.W. 934; Pulsifer v. City of Albany, 226 Mo. App. 546; Miller v. Hotel Savoy, 228 Mo. App. 468; Clayton v. Hydraulic Pressed Brick Co., 27 S.W.2d 57; Marx v. Parks, 39 S.W.2d 575; Stumbo v. Duluth Zinc Co., 100 Mo. App. 640; Cunningham v. Doe Run Lead Co., 220 Mo. App. 49; Dando v. Home Tel. Co., 140 Mo. App. 521; Kemp v. Doe Run Lead Co., 57 S.W.2d 762; Klusman v. Harper, 221 Mo. App. 1114. (a) Respondent is entitled to recover for any impairment of the strength, health and usefulness of his wife, as a wife and helpmate, and for any diminution of the benefits to him of her society, companionship, management and direction of the home and its affairs, as well as for loss or diminution of her services to him and the home. Furnish v. Ry. Co., 102 Mo. 676; Reeves v. Lutz, 179 Mo. App. 84. (b) No direct proof of such losses to the husband is or could be required and the assessment of "compensation therefor must necessarily be left to the sound discretion and judgment of the triers of the facts." Furnish v. Ry. Co., 102 Mo. 677; Reeves v. Lutz, 179 Mo. App. 85.
The plaintiff's wife, Verda Pandjiris, while on a public sidewalk in St. Louis in front of an abutting building owned by and in the exclusive possession and control of the defendant Oliver Cadillac Company, was struck by a brick out of the wall of said building, which fell from an upper floor thereof, causing injuries to her resulting in loss and injury to him, as her husband, for which he brought this suit to recover damages in the Circuit Court of St. Louis County. The trial resulted in a verdict and judgment in his favor for $22,191, and the defendant took this appeal.
In an action brought by the plaintiff's wife for damages for the injuries she sustained in that casualty she recovered a judgment for $30,000 from which defendant brought an appeal to this court. That case, Verda Pandjiris, respondent, v. Oliver Cadillac Company, a corporation, appellant, 339 Mo. 711, 98 S.W.2d 969, is decided concurrently with this one and may well, for the sake of brevity, be taken as the background for our consideration of the instant case; it is largely determinative of the question of legal liability, and should be read in connection with this opinion.
The grounds of error here assigned are (1) to the refusal of the demurrer offered at the close of the case, (2) to the giving of plaintiff's Instruction No. 1, and (3) to the amount of the verdict as being grossly excessive and indicative of passion and prejudice.
As to the first contention we make the same ruling as was made on a similar contention in the companion case.
Before taking up the instruction it is well to set out evidence additional to what is stated in the wife's case and bearing specially upon the issue of the husband's indirect injuries upon which this action is based. The substance of this additional evidence follows: Since the injury she is not herself at all. She always wanted to talk before and was rather talkative and liked to have friends. Now she is silent and sad, wants to be alone, walks nervously about, and cannot get her mind on anything. She has lost interest in everything she and her husband enjoyed before. Her nights are restless. She just does not want to go any place or mingle with her and her husband's friends. From an affectionate and passionate wife she changed immediately to the contrary and is unable to perform any wifely function. She has lost her art of piano playing, and has grown obese from inability to safely exercise. She tries to be her former self, but cannot amend her unfortunate condition. "She is as good as she is going to be," said Dr. Funsch, her attending physician; "she will never get better, though she may get worse." She has never been able and is not now able to do housework.
It was shown and not disputed that the items of expense to plaintiff for his wife's medical bills, hospital, nurses and X-rays amounted to $2191.
Plaintiff's Instruction No. 1 hypothesized all the elements which prima facie showed defendant's negligence and liability for the casualty which produced plaintiff's injury, and upon the jury's finding of which a verdict for the plaintiff was authorized. It is apparent that this instruction omitted to require a finding that plaintiff suffered loss and damages resulting from the wife's injuries, an essential element of plaintiff's right to recover. The rule is well settled that an instruction which omits an essential element of plaintiff's right, and yet authorizes a verdict for plaintiff, constitutes error. [State ex rel. Lusk v. Ellison et al., 271 Mo. 463, 196 S.W. 1088; Alexander v. K.C. Rys. Co. (Mo. App.), 231 S.W. 66, 68; Hopkins v. M. O. Railroad Co. (Mo. App.), 33 S.W.2d 1009, 1010-1011.]
The respondent admitting that said instruction, standing alone, is technically erroneous for failure to require such an express finding as to that omitted element, insists that this element is supplied by another instruction given for plaintiff, No. 5, which in substance told the jury that if they should find the matters hypothesized for plaintiff in Instruction No. 1, then they should award him such sum in their verdict as they might find would reasonably compensate him for any direct loss sustained by him as the result of bodily injuries to his said wife in the following particulars, to-wit:
"For any impairment which plaintiff's said wife has sustained, if any you find, or which will result in the future, if any, as a direct result of her injuries, of her ability to perform her ordinary domestic and household duties as plaintiff's wife; for the loss, if any, of the society and companionship of his said wife, if any, sustained by the plaintiff by reason of her bodily injuries or any such loss, if any, you believe plaintiff will sustain in the future, as a direct result of her said injuries; for all expense, if any, incurred by the plaintiff for hospital bills and nurse hire in the necessary treatment and cure of his said wife, directly resulting from her said injuries, if any, not to exceed as to these items, however, the sum of $800 00; for any medical services, if any, necessary in the treatment and cure of her injuries incurred by the plaintiff, not to exceed as to this item the sum of $1,391.00, and then award plaintiff such sum as will reasonably compensate him for his loss and expense, if any, incurred in the particulars hereinabove set out."
We think the rule above stated is not violated in this instance when these two instructions are considered and read together, as they should be. "The two instructions taken together define, somewhat awkwardly but correctly, the duty of the jury." [State ex rel. Ambrose v. Trimble (en banc), 304 Mo. 533, l.c. 539, 263 S.W. 840.] On principle and in its reasoning that case so decided with respect to instructions analogous to these.
As further indicating that the jury properly understood the issues they were to determine in assessing damages, respondent directs attention to other circumstances, namely: the defendant introduced in evidence the petition in the wife's case showing that she claimed damages for her own injuries; and obtained an instruction specifically directing the jury, in reaching their verdict, not to consider the injury and damage accruing to the husband from the wife's injury. And in the present case the jury were instructed at the instance of the defendant that in the event they should find for plaintiff they could not, in assessing the damages, take into consideration the claim the wife individually might have, or any loss she herself sustained, and that the plaintiff husband "is confined in his recovery to those items specified in Instruction No. 5." There was no evidence refuting plaintiff's evidence relative to necessary expenditures in his wife's behalf, and it was not seriously disputed that he sustained loss in respect of services and consortium due to his wife's altered condition. In view of what has been said above it follows that the error in Instruction No. 1 does not require a reversal of the judgment.
Respondent urges that the verdict is not excessive in amount as compared with that in Homan v. Mo. Pac. Ry. Co., 335 Mo. 30, 70 S.W.2d 869, where a verdict for $20,000 obtained by a husband for his loss of services and consortium due to his wife's injuries, and for his expenditures of $700, was reduced by this court to $12,500. That was an unusual case. So is this. Though in the case at bar the injury was hardly so great as in the cited case, the outlay herein was greater than therein. We are cited to various other authorities by the respective counsel but to none giving any more substantial aid than those we cited in the opinion in the companion case referred to.
We are of opinion the verdict is considerably excessive as regards the overplus beyond $2191 for sums laid out. We think this overplus should be pared down to $10,000, which is in the same proportion as was the remittitur ordered in the wife's case. It is our conclusion that if the respondent will within ten days from the filing of this opinion remit $10,000 as of the date of the judgment below, the judgment will be affirmed; otherwise the judgment will be reversed and the cause remanded.
All concur.