*1 DAY, BINEGAR, Appellant Respondent v. 521)
(120 N.W.2d (File Opinion 1963) No. 10014. filed March *2 Hofer, Pierre, Stephens, Mayer Robert D. Riter & Appellant. for Defendant and
Dudley Simpson, Gregory, R. Herman & for Plain- John J. Respondent. tiff and injured FIOMEYER, Plaintiff claims that his wife was in an J. *3 negligence accident,
automobile his and defendant has admitted Damages sought was the cause of the accident. are for the fol- lowing: Expenses 1. Loss of consortium. 2. of medical treatment. damage. expenses 3. Future of medical treatment. 4. Car The damages $13,115.46. plaintiff awarded in the amount of Proof $4,115.46. appeals on 2 items and 4 totaled Defendant from the judgment assigns among things as error other the order de- nying motion for new trial. (1) questions presented plaintiff
The for review are: Does (2) have cause of action for loss of consortium? Misconduct of (3) counsel. Error on admission of evidence and on instructions. (4) Sufficiency damages. of the evidence and excessive
We will first consider if has a cause of action in this Appellant state for loss of consortium. asks the court to recon Helgeland, 82, sider its decision in Hoekstra v. 78 S.D. 98 N.W.2d 669, in which it was held that the wife had action, such cause of apparently implying recognized therefrom that this court has action, although specific cause of husband's question has presented. The not been Hoekstra case extended to the wife the right her resulting to sue for loss of husband's consortium from right negligent Her a tort. sue for the so-called intentional or recognized cases, Moberg tort was malicious earlier Scott, v. 422, 998, L.R.A.1917D,732; Id., S.D. 161 N.W. 372, 38 42 S.D. 175 N.W.559; Wall, 467, v. 423; Holmstrom 64 S.D. 268 N.W. Swan 161, Ball, S.D. v. 67 290 N.W. son 482. 144 weight authority country that the in this is to the effect
The
resulting
right
has a
to sue for loss of consortium
husband
negligent
injury
person.
many
of his wife
a third
See
cases
1517;
in 21 A.L.R.
We are
(now
98,
Act,
Laws 1887
revised into SDC
Married Women's
Ch.
arising
negligent
14.0207),
action
from a
tort accrue
all causes of
right
sole and the husband's
to the wife the same as a feme
jurisdictions
A
been abolished.
few
sue
loss of consortium has
Co.,
9,
582,
St. R.
A.
so held. Marri v. Stamford
84 Conn.
78
have
1042; Bolger
Co.,
L.R.A.,N.S.,
Ry.
Boston Elevated
205 Mass.
v.
389;
Co.,
420, N.E.
Helmstetler v. Duke Power
224 N.C.
611;
Lines,
Greyhound
S.E.2d
Southwestern
144 Kan.
Clark v.
The husband comfort, conjugal services, aid, society, companionship, and and consortium, affection, generally in term embraced and the all right weight great authority that such common-law of was not abrogated Am.Jur., by passage Married Women's Acts. of the 27 502, Chattanooga Wife, Carter, p. City 101. v. and Husband § 127, 609, succinctly S.W. states the rule of Tenn. 179 the ma 132 deprive says: jority "The act does not either when it the husband conjugal rights", relationship, with its duties and or wife of legislation explicit positive depriving is enacted until right, deprived we hold that he is not of such of the the husband (consortium) right society the aid and the loss of to sue for of his
145 state, this SDC effect is in force and law wife. The common sovereign 65.0103, will of the except with the it conflicts where 65.0102, and forth in SDC power expressed the manner set deprive the hus- did not Act the Married Women's we hold right of consortium re- sue for loss band of his common-law sulting negligent injury to his wife. language court approve North Dakota
We 738, 530, Leigh, 418, 173 A.L.R. a N.W.2d in Milde v. 75 N.D. 28 case, negligence where it was said: is not of the husband of action in favor
"The cause damage injury to the hus- wife but for the for the of the loss of the wife's services band on account society expenses incident to her care and and for the 130; Relations, 137, p. Spencer, Law of Domestic sec. cure. 483;
Rogers Smith, Thompson 17 Ind. 79 Am.Dec. v. Branch, A.L.R. 1413." Ft. 204 Ind. 178 N.E. a., p.
and 41 and Wife Husband § C.J.S. contrary, person- "In the of statute to the a absence injury to married woman caused the tort of a third al a action, gives person per- two causes one for her rise to suffering, pain sonal and the other for the husband's society consequential of her and services and for loss nursing." expense incurred for medical attention and Binegar years at the time of trial was 34 old and his Robert 1, 1955, May They were married was 26. have one wife aged Garnet, Binegar daughter, 3 at the time of the accident. police per $355 force and earned on the Pierre month. His was night 16, 1959, July household. On the took care wife old, years nephew, family had attended a drive-in returning Highways home on near Pierre and U.S. 14- movie driving daughter Binegar and his wife and were in the 83. front daughter lap. her head on her mother's and the seat approached seat. Defendant's nephew was in the back automobile bright lights wrong with opposite direction on the side of from the *5 Binegar pulled right down slowed and to his extreme the road. accident, Before the collided. he noticed the vehicles his wife and staring sitting impact. ahead. She screamed and before the stiff injury, any physical No but when Mrs. one sustained visible Binegar complained bump at small was home she about a on August, 1959, days. disappeared her which after a few In head she Knowles, Falls, psychiatrist took to Di. a at Sioux the child see and Leander, psychiatrist later same saw Dr. also a that month she eight outpatient at Sioux Falls. Dr. saw her as an Leander times February and then on she entered a Sioux Falls hos- pital days she where remained received electric shock hospital treatments. her insulin After release from the before trial on December had seen she been Dr. Le- outpatient appoint- an ander as 16 times and had scheduled one expectation trial ment after with an be that there would additional changes appointments. Plaintiff noticed in his wife soon after the irritable, daughter, She accident. was more cross with the ne- glected duties, home, stay her household wanted at broke dishes, wall, food, neglected telephone tore the from the burned talk, appearance, personal any her refused to didn't take interest affairs, driving in her husband's business had fear of in an auto- night, cold, frigid, particularly only mobile at was occasion- ally sex relations with her husband. same These conditions gradual hospital after continued her from release with im- provement Dr. time of trial. Leander described Mrs. Bine- gar having shy personality a introvert before the accident triggered by with a dormant neurosis which was the accident and developed (complete into a schizo-affective disorder removal realism) hospitalization. that necessitated her The schizzo-affective hospital was disorder absent on her release she showed gradual improvement expected to time of trial and doctor a complete pre-accident trial, return her condition. At the time of post-traumatic (exaggerated a phobia she still had neurosis and fear) pre-hospital travel of car and some of the other conditions Knowles, agreed psychiatrist, still Dr. existed. defendant's triggered pre-accident there was neurosis which was suffering post-traumatic and that she still accident was from a 8, 1961, deposition taken, when his neurosis on June she phobia expected still had a on auto travel. He that she would gradually pre-accident recover and return her condition. gave opinion Binegar a direct Neither doctor time before Mrs. pre-accident restored to her be would condition or the cost of *6 damages special to time of on treatment. Proof future medical $899.51;drugs, $670; following: doctor, hospital, the trial included $360; meals, (husband), $26.69; $32.46; calls, phone loss of time $416.90, $1,260; damage, $295; travel, $155; or a babysitter, car $4,115.56. testify She the trial. did not Plaintiff's wife total of during momentarily plaintiff's direct ex- appeared with her sister jury. pointed Other evidence her out to the and he amination points. in discussion of various will be referred to of counsel of misconduct claims seven instances Defendant rights prejudiced by reason thereof his contends that begins alleged misconduct not receive a fair trial. The and he did argument opening final and concludes with the with the statement only jury. pleadings facts were caus- issuable From damages. ation, found, plaintiff's amount of and if this was alleged Virtually misconduct action of the court all of the and the appears transcript not confronted with from the so we are thereon any place. denial of what took statement, opening plaintiff's counsel used a
In his "special" on which he wrote under the word these blackboard bill, figures damage, travel, $1,260; hospital items viz.: $670; $32.46; $26.69; $899.51; bill, drugs, bill, phone doctor $360; $155; $295; time, meals, baby-sitting, loss of car dam age, $416.90, $4,115.56. writing fig In or a total these ures, referred to some of the items as reasonable he (defendant's counsel) paid that Mr. Riter some of the ex pense. By stipulation, by wife was examined defend paid trial and ant's doctor before defendant's counsel the ex figures statement, opening pense. At the conclusion of the objected blackboard, defendant were erased. The to the use of the by but it was allowed the trial court. Supp. 33.1307reads:
SDC 1960 "(1) having party proof or the burden of general state the issues and the
shall nature of the expects produce evidence he in substantiation stating issues what claims he the issu- be, without facts to able without nam- ing identifying any particular or witness or exhibit expects prove any which he of such issuable facts;" *7 object purpose opening briefly statement is to litigation concisely state issues the involved in the and fa- judge jury
miliarize the trial with the nature of the case and Zurn, produced. the evidence to be Fossum v. S.D. 100 argument. N.W.2d 805. It is not evidence. It should not be Counsel stage identify any should not name or witness or exhibit. At this trial, jury peculiarly impressionable the is alert and confining importance language opening statement and intent of the statute is obvious. The use of the blackboard opening employed in the statement in the manner defend- improper ant's counsel was and the statements of in counsel con- usage nection special with its and his comments on the items of damage irregular. recognize highly We that some courts permitted have opening blackboards and charts to be used in prejudicial statements without resultant error or error. Four- County Clardy, Electric Power Ass'n v. 221 Miss. 73 So.2d 1191; 44 A.L.R.2d but we believe that in the interest of secur: ing trial, discourage a fair the trial court should its use in the opening unnecessary statement as and without substantial as- jury understanding sistance to the the issues. argument,
In final counsel for defendant said: "* * * Dr. Leander who the doctor for Pauline Binegar (neurosis long they phobia) don't know how got They appointment will February last. another time, 1962 for her. Be some more loss of some more doc- bills, babysitting, food, tor some more some more another travel, Leander, 450 miles you future. Doctor heard his testimony, maybe he said years, another four or five might maybe relapse she way have a and be this the rest of her life —"
Objection was made a misstatement of evidence and motion for mistrial for misconduct was denied. Dr. Leander had testified give prognosis long that he was unable to disability of how leading would last and in question: answer "It could four, possibly years?" answered, continue five or six he "It could average conceivably. I don't think so." reference cases With thought of this kind he lasted from six months to treatment three years depending frequency to four on of visits. He also testified Binegar might possibly relapse that Mrs. suffer a or recurrence psychotic of a condition. Binegar per
There was no claim that Mrs. injured manently perma and no issue for determination nent loss of improper consortium and the statement was beyond Holscher, Cooper the issues of the case. 60 S.D. Although argument,
Counsel also made this statement in final "* * * you fifty do think thousand dollars actual *8 damages woman, suffering, for this what this man is probably future, continue to suffer in the is too much?" Objection lawsuit, was made that this was not the woman's but lawsuit, the man's highly improper that the statement was prejudicial, by which was overruled the trial court without ad- jury. any monition to the Of course reference to the woman's dam- ages highly improper was and an examination of the record re- veals that personal much evidence as to her treatment at the hos- pital, pain suffering, objection permitted was without part personal which is a of her type litigation, claim. In this of claims, separate where there are those of the husband and those wife, of importance it is of the utmost to limit the to con- sideration of what is included in the case. Plaintiff's wife was one plaintiff's of ten children and coun- closing argument
sel in said: "Not one incident of mental dis- just family, order in that whole reports Pauline." Medical testimony knowledge was to the effect that there was no any of among witness to mental illness other family. members of her The statement of counsel was not an supported established fact by the evidence. argued neighbors
Defendant's counsel that should have testify been called to in substantiation disruption household by plaintiff's caused wife's plaintiff's illness and then counsel case, up
said, "Certainly he's Mrs. into called checked this he's lady Schwartz, up landlady) downstairs." (plaintiff's called argu- Objection improper this untrue and made that was was was outside the record This statement ment and overruled. generally improper comment on failure improper. not to is held It witnesses, p. fail see Trial and we to to call § C.J.S. justification fact a statement of that defendant's retaliation or landlady lady without and the downstairs had called the counsel any effect. evidence whatsoever posses plaintiff prior to had his trial in
Counsel for plaintiff's reports wife's condition medical of sion three written respectively Feb psychiatrist. Two of these were dated her from ruary third was undated and and the 1960 and June requests copies for Written apparently made the last date. after plaintiff's coun counsel defense reports made to of such ignored production was made and then motion sel which were discovery pursuant statutes and denied. correctness challenged ruling appeal in and we no this make such not assignment pertains to misconduct thereon. The of error comment stating court and to defense counsel counsel possession plaintiff reports his or coun that such were not reports has not denied that such were in Plaintiff's counsel sel. possession date the motion and has not denied that on the his nor re informed the court that neither he written he Prejudice ports Dr. is claimed that reason of Leander. properly claimed misconduct defendant not able to such *9 plaintiff's prepare trial. do not condone action of for We the attempt intentionally if is the counsel and an made to mislead reports, irrespective or location as the existence of these court to subject ruling, rightfully counsel are It of the court's to criticism. practice. to be a violation of his oath on admission See would Supp. 1960 32.1109. A review of the entire record leads to SDC us knew that defendant's counsel or should have conclude known reports by plaintiff's had been made doctor that medical and that produced they trial. would be argument, final counsel In related incidents experiences attempt parallel to in an draw a his war to what Binegar. pronoun happened to used Mrs. He the "I" people vividly portrayed of how different reacted his observation argument attempts justify in to this line of under stress battle. He pertaining common knowl- as to self-evident facts and matters of edge. agree. Objection do not was made with motion for mis- We jury. trial. It was denied without admonition to the a., generally p. rule is stated in 88 Trial 355. § C.J.S. proper per- "It is counsel of his not for to state facts knowledge facts, experience, own un- sonal or his of witness, less he has testified as a to make his thereto or argument presentation an of avenue for the unsworn testimony, knowledge or 'for him to insinuate that he has of facts." Rowatt, Ill.App.
Clark v. 663. 110 N.E. 2d The line of argument employed improper support here is and devoid of in permitted. the record. It should not been have recognize We counsel that are allowed wide latitude argument narrowly and that a court should not too limit the presentation manner form of and the inferences and con evidence, long clusions to be drawn from the so unfair means employed prejudice jury. primary are not respon It is the regulate sibility trial court and control counsel in their arguments large permitted, and a improper discretion many and the effect thereof has been times determined prejudice by prompt to be without and careful admonition. A plaintiff penalized should not be for the misstatements of his coun granting sel and the trial discipline a new should not be used to appellate only An counsel. court should interfere when from an record, examination it entire is convinced that there has miscarriage justice. been a
Counsel impliedly at least concede that a portion beyond substantial of their conduct was the confines of argument, urge proper earnestly prejudice but that there no it was that for the trial court in the exercise of a sound dis cretion to inflammatory determine whether the remarks were prejudicial. repeatedly It has been virtually so held but all by prompt cases the trial court admonition rebuked counsel and disregard they statements, advised such *10 easily jury be assumed was that it could such the verdict influenced, af- was not they that the verdict not that prejudice. of by passion here is devoid The record fected by instances the form the court and in some admonitions argument was after it was called of continued manner attention. court's know from what this state know or should
Counsel Best, and the cases 77 S.D. 93 N.W.2d in Bean v. said cited that there court, beginning, that has insisted
"This from its arguing keep to within issues when cases counsel the judgments to not hesitated reverse the and has transgressed have the rule." where counsel any forth alone if of the conduct set stood also be said that It can might prejudice, when it was without but we conclude that pursuit survey what record and the continued the entire we misconduct, course without termed as a calculated must be admonition, prejudice has estab- we believe the claimed been coming we In to this conclusion reiterate what has been lished. by previous this in numerous cases that whether or court said generally depends prejudicial upon is not error circumstances Best, supra. particular Bean a case. assignments of error have been considered not Other but are disposal necessary appeal. this determination judgment is reversed. RENTTO, JJ., Concur. ROBERTS and HANSON, J., concurs in result. P.
BIEGELMEIER, J., specially. concurs (concurring BIEGELMEIER, Referring specially). to a chart J. showing damages special opening statement ex- argument, practice prove, trial pects without be deter- subject judge his control. the trial It should mined be during used in trial unless the oral ap- removed Four-County opinion Treating cited proved in the court. cautionary admonition, agree as a statement I court's but *11 closing do if it meant it. As cannot so to eliminate plainiff's family, no Ex. B of mental disorder in plaintiff supported answers cross-examination of this statement Otherwise, proper. opinion. I concur in the STATE, HEMMENWAY, Respondent Appellant
(120 561) N.W.2d (File 1963) Opinion No. 9983. filed March