ON REHEARING Both parties have submitted briefs on rehearing. Defendants' additional brife is devoted chiefly to an argument that defendants were right in their original contentions, to-wit, that the contributory negligence of the wife should be imputed to the husband by reason of the marital relation. No arguments are advanced, or principles of law enunciated which were not considered by this court on its former review of the case. Defendants repeatedly insist that this is a case of first impression in this State, but in this position, we *Page 445 cannot agree. We have before us the case of Munger v. City,66 Mo. App. 629, 632, referring to the contention that the contributory negligence of the husband may be imputed to the wife. The court said:
"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., 172 Mo. App. 470, 478: ". . . to impute the negligence of the husband, it must appear that he was her agent in driving the car. And to escape liability on the ground of the husband's imputed negligence, the answer should have set up the facts which would in law allow the negligence of the husband to be imputed to plaintiff. The mere fact that the wife owned the automobile was hardly sufficient to render unnecessary the pleading of the husband's imputed negligence. This was not done nor was contributory negligence on the part of the husband, as a matter of law, shown by the evidence." [See also Bolman v. Bullene, (Mo. Sup.) 200 S.W. 1068; Bright, Admx. v. Thacher, *Page 446 202 Mo. App. 301, 312; Moon v. Transit Co., 237 Mo. 425, 435.] In the last named case, it is said:
"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, 273 Mo. 1, 200 S.W. 286, wherein the Supreme Court carefully reviewed the authorities covering all the points involved herein. Since we are bound to follow the law as laid down by that court, the judgment herein must be affirmed. It is so ordered.
All concur.