Birmingham Railway, Light & Power Co. v. Roach

66 So. 82 | Ala. | 1914

McCLELLAN, J.

This action by the appelleé against the appellant is for damages resulting to him (the husband) in consequence of the injury of the wife while a passenger on the defendant’s street railway. Where, through the wrongful or negligent act or omission of another, a husband suffers deprivation, in respect of the society and services of his wife, he may recover compensatory damages therefor; but not for the injury itself.—Sou. Ry. Co. v. Crowder, 135 Ala. 418, 33 South. 335; Birmingham Ry. Co. v. Lintner, 141 Ala. 420, 38 South. 363, 109 Am. St. Rep. 40, 3 Ann. Cas. 461. The complaint accorded in its averments with a sufficient statement of plaintiff’s assertion of a right to compensation under the doctrine stated. The demurrer was properly overruled. There is no occasion, in such cases, to define or itemize the particular injuries suffered by the wife. The rule is quite different where the immediate subject of the action is tbe injury to the plaintiff, as was the case in City Delivery Co. v. Henry, 139 Ala. 165, 34 South. 389.

The wife of the plaintiff was examined as a witness in his behalf, and testified to her physical injury in consequence of the sudden movement of the car, while stationary, at a time when she, a passenger, was moving down the aisle of the car preparatory to alighting therefrom at a regular place for the discharge of passengers. She described her injuries and how they were inflicted. She further testified that she was well and strong up to the time of this injury; that she had not been well since that time; and that up to that time she “was doing the biggest part of my (her) housework, for my (her) husband and family.” Plaintiff’s counsel, at this stage of the examination, propounded the following question to the witness“Well, after that were you able to do your housework, or did you do- it?” The objection’s grounds, addressed to the question as a whole and then to each alternative of it separately, embraced these grounds: That a conclusion was sought thereby; that it sought to elicit testimony of an inadmissible self-serving character. Comprehended in the violated right and consequent losses for which a husband, in such cases, is entitled to be compensated are deprivation, because of injury wrongfully inflicted upon the wife, or services which the wife formerly customarily rendered the husband in the household. Legal evidence to show such deprivation is necessarily material and relevant. The manifest object of the quoted question was to afford evidence to establish that element of recoverable damage, if the plaintiff was otherwise entitled to recover. So the question, if objectionable at all, must have been on account of its form rather than of its substance. It is obvious that the latter alternative thereof called for a fact, viz., did you, after the injury in question, do household work, which, she had just testified, she had theretofore done in the larger proportion. It is insisted that the ruling in Cockrum’s Case, 182 Ala. 549, 60 South. 304, 309, to the effect that a similar character of evidence was objectionable because possible of being self-serving, should be held for authority in support of the latter ground of the objection. The pertinent statement made in that case (Cockrum) has been reconsidered by the full bench. The statement there was not decisive of the result of that appeal. Our conclusion now is that it is unsound. The testimony there considered and that now under review was evidential of a material fact within the issues of the trial. Whether the injured party did or did not, after and because of the injury complained of, perform Avork or services theretofore customarily performed was a fact- exempt from denial of proof because self-serving. Any witness, whether the party or not, who knows the fact, is competent to testify that after the injury the injured party did not perform the work or services theretofore customarily performed. If the adversary party conceives that the inability to perform such work or services, after and because of the injury, was feigned, it is the office of cross-examination or the adduction of countervailing evidence to bring before the jnry the basis for that 'view The court did not err in allowing the question quoted above. Upon like considerations assignments numbered 14 and 15 are without merit.

Appellant can take nothing by the motions to exclude these statements, pertinent to Mrs. Roach’s condition in respect to health and activity, before her injury, of the witness Mrs. Faulkner, who was examined on interrogatories: “I never knew her even complain of a ! "Mlache. * * * Never knew her to be in bed a day.” This witness had already testified that she had been intimately acquainted with 'Mrs. Roach, and that her health appeared to be excellent, and that she was very active. The responses quoted were, in effect largely, if not entirely, affirmatory of what she had already testified. But, aside from that, those responses, by an intimate acquaintance and neighbor of the subject of the inquiry, were no more than a negatively expressed affirmation of Mrs. Roach’s freedom of a particular trouble and her exemption up to that time of any confining malady — facts which, if she knew them, the witness might have testified.

The other two questions set forth in the ninth and tenth assignments of error, with the responsive answers made thereto, cannot avail appellant, for that objections to the interrogatories were not seasonably interposed.

The motion to exclude the testimony of Dr. Copeland, the physician attending Mrs. Roach, wherein he testified to pain having been suffered by her, was properly overruled.—Eckles v. Bates, 26 Ala. 655; Birmingham Ry. Co. v. Hale, 90 Ala. 8, 8 South. 142, 24 Am. St. Rep. 748.

The questions to the plaintiff, as a witness, whereby it was sought to show his wife’s expression, or manifestations of pain when turned by him in bed, to which she was confined, and to the duration of her condition so as to require her movement by the use of the sheet, were not objectionable. The evidence they elicited was immediate in its bearing upon the primary inquiry of basis for the loss alleged to have been suffered, in consequence of her injury, by the husband.—Birmingham Ry. Co. v. Lintner, supra; Eckles v. Bates, supra.

Charge 4, given at the instance of defendant, removed any possible prejudice to defendant by reason of the refusal of the charge set out (unnumbered) in the sixteenth assignment of error. But, aside from that, the charge which purports to announce a general rule cannot be approved ivhere negligence might be imputed from the premature starting, though properly done, of a car in which a passenger may be moving with the rightful purpose to alight therefrom.

The assignments of error insisted upon in brief are without merit. The judgment is affirmed.

Affirmed.

All the Justices concur.