Citation Numbers: 245 S.W. 346, 211 Mo. App. 438
Judges: ARNOLD, J.
Filed Date: 11/6/1922
Status: Precedential
Modified Date: 1/12/2023
"There can be no recovery against the party doing the injury unless he has been guilty of culpable negligence. When guilty of negligence, he must respond in damages to the party injured, unless he can excuse himself by showing the contributory negligence of the party injured, or of some other party with whom the injured party is so connected as to be responsible for his acts. Such connection and responsibility do not exist from the mere marital relation."
Plaintiff directs our attention to the fact that contributory negligence is not pleaded in the answer, directed against plaintiff. It is true defendants' answer does not charge, either directly or by inference, that plaintiff was guilty of contributory negligence, but does charge plaintiff's wife with contributory negligence. It is the law that a plea of contributory negligence must be specially made and proved in order to be available as a defense. Defendants insist, in their argument, that if contributory negligence on the part of the wife be shown, it will be imputed to the husband.
Under the law, as interpreted by the appellate courts of this State, we cannot accept this argument as sound. This court said, in Byerly v. Ry. Co.,
"The law in this State is well settled, as well as in many of the others, that the negligence of neither the husband nor that of his servant is imputable to that of the wife. [Shultz v. Railroad, 193 Mass. l.c. 316.] After an extended review of the authorities in that case, the court concluded with the following language: `But the great weight of authority is in favor of the proposition that the negligence of a husband is ordinarily not imputed to his wife, in case she is injured by his and another's concurring negligence.'"
Our original opinion in this case closely followed the rulings in Hays v. Hogan,
All concur.