In special ground 1 of the amended motion for new trial error is assignéd upon the ground 'that the verdict is contrary to a specified portion of the charge of the court. “An assignment of error that a verdict is contrary to the charge of the court, or to a portion thereof, is in effect merely an assignment that the verdict is contrary to law, and presents no'question for decision.
Roberts v. Keeler,
In special ground 2 error is assigned upon the charge of the court: “Gentlemen of the jury, there were certain allegations in the plaintiff’s petition about the injuries that were received in this collision by Mr. Jake Landrum, the husband of Mrs. Landrum. Now gentlemen these are in the petition for the purpose of showing whether or not the question should be submitted to the jury as to whether or not Mrs. Landrum has lost her right of consortium with her husband, and you are not concerned with how much Mr. Landrum himself might have been injured. There is no suit here in his favor.” It is contended that the jury was concerned with how much the husband had been injured and that to charge the jury that the extent of his injuries was no concern of theirs was error harmful to the defendant.
We think this assignment has merit. The amount of the impairment or disablement of the husband is basic in determining whether and to what extent the wife has been deprived of his consortium. If the portion of the quoted charge “and you are not concerned with how much Mr. Landrum might have been injured. There is no suit here in his favor,” had been omitted the charge would have been proper and free from error.
In special ground 3 error is assigned upon the charge: “There is no suit here in his favor.” While it would have been better if the court had made no reference to the matter of any suit, or lack of it, in the husband’s favor since that matter was entirely irrelevant to the issue on trial, yet we can see no harmful error in this statement. It is urged that this was calculated to influence the jury to include in their verdict some amount for the husband’s injuries, but we think it just as logical to say that it was calculated to caution them to refrain from that.
In special ground 4 error is assigned upon the charge: “In other words, there is no suit here by Mr. Landrum himself, and you are not concerned with whether or not Mr. Landrum is entitled to recover. There is no suit here in his favor; this is merely the case of Mrs. Landrum and you are to determine whether or not Mrs. Landrum is entitled to recover, and what *514 that amount would be.” It is urged that the statement to the jury that “you are not concerned with whether or not Mr. Landrum is entitled to recover” is incorrect because it is basic and fundamental that no determination of any loss of consortium could be made unless the jury could find, under the facts of this case, that the husband had a cause of action against these defendants for his own injuries.
We are in agreement with this contention. The jury was necessarily concerned with the matter of whether the facts were such that liability would attach against the defendants for their alleged negligence in causing injury to Mr. Landrum. The right of the wife to recover for loss of consortium on account of alleged injuries inflicted upon her husband can not arise unless her right to the consortium has been adversely affected under circumstances giving rise to liability and from which liability attaches. Suppose, for example, it should appear that the husband’s injuries had resulted from a pure accident, or from some non-negligent act of another, certainly it could not be held that simply because the consortium is lost the wife may recover. And so, before making any determination that the wife is entitled to recover the jury must determine whether the consortium has, in fact, been lost and, if so, whether the cause of the loss was such as to give rise to liability on the part of the defendants. One spouse’s right of action for the loss of the other’s society or consortium is a derivative one, stemming from the right of the other. Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (
It is, of course, proper and a duty of the court clearly and plainly to admonish the jury that in the event a verdict is returned for the wife it should not include any award for the injuries that the husband may have suffered, and that it is to represent only compensation to the wife for her loss of consortium. This may well have been what the court here intended to accomplish in giving the portions of the charge excepted to in Divisions 2, 3 and 4 of this opinion, but we apprehend that the objective may not have been accomplished. The wording of the charge was inapt.
(a) In special ground 5 error is assigned upon the charge: “Gentlemen, if you should find in favor of the plaintiff in this
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case, of course you would find so many dollars and so many cents in one lump sum. You cannot divide it as between the defendants or anything of that kind; you must find one lump sum, so many dollars and so many cents.” It is contended that the instruction that if the jury should find for the plaintiff it must be in one lump sum and could not be divided as between the defendants was error, and that no measure of damages was given the jury as a basis for making a verdict.
Code
§ 105-2011 does provide that “Where several trespassers are sued jointly, the plaintiff may recover, against all, damages for the greatest injury done by either. The jury may, in their verdict, specify the particular damages to be recovered of each, and judgment in such case must be entered severally,” and in
Cox v. Strickland,
(b) Now as to the contention that no measure of damages was given the jury in connection with this charge, or elsewhere
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in the charge, a reading of the entire charge discloses that no measure was mentioned. Damages for loss of consortium, like damages for pain and suffering, are general damages. The measure, then, as for pain and suffering, is the enlightened conscience of an impartial juror. We know of no other. “Where there is no exact pecuniary measure, but the extent of a recovery, if any, must be left to the enlightened consciences of impartial jurors, no very elaborate instructions are required; but it would certainly have been better practice for the court to have given the jury some instruction on the subject.”
Central of Ga. R. Co. v. Madden,
In urging the general grounds of the motion it is contended that since it appeared from the testimony of plaintiff’s husband that this defendant, Hightower, was his servant, under his direction and control 1 at the time of the accident in which Landrum is alleged to have been injured, and since Landrum was personally present, sitting on the seat of the truck next to Hightower and giving direction as to its operation, the negligence, if any, of Hightower was imputable to Landrum—-that Landrum himself could not recover against Hightower, and consequently Mrs. Landrum could not recover against him for the loss of her husband’s consortium.
There are many cases, both of this court and the Supreme Court, holding that the doctrine that the negligence of the driver of a vehicle, who by such negligence contributes to cause a collision is not imputable to another person riding by invitation in the vehicle,
unless that person had some right or was under some duty to influence the driver’s conduct.
See
Southern R. Co. v.
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King,
But, where, as here, the action is brought by the master against his servant-driver and a third person, the rule is different
insofar as the action is against the servant.
“The doctrine of imputed negligence has no application ... to actions brought by the master against the servant to recover for injuries suffered by the former as a result of the latter’s actionable negligence” for “it would offend justice and right to impute the negligence of a servant to his master and thus exempt him from the consequences of his own wrong-doing where the negligence proximately causes injury to a master who is without personal fault.” Rollison v. Hicks,
While, as was further held in that case, “[t]he negligence of the driver of an automobile,
in an action by or against third parties,
is imputable to the owner-occupant thereof” (emphasis supplied) under circumstances giving rise to a right or a duty of the owner-occupant to control the driver’s actions, that does not apply in an action between the owner-occupant and the driver, or if the action be brought against both the driver and a third party it does not apply as against the owner in his effort to recover from the driver, though it does apply as between him and the third party. Cf. Mason v. Russell,
While under the evidence a verdict in favor of Hightower was authorized, we can not say that it was demanded. There was some evidence, obtained principally on cross examination of the driver of the vehicle that struck the Landrum truck from behind, upon which the jury might conclude that Hightower was to some extent at fault and that his acts were a concurrent proximate cause of Landrum’s injuries. The general grounds are
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therefore without merit.
Georgia Power Co. v. Blum,
Judgment reversed for reasons stated in Divisions 2, 4, ond 5(b).
Notes
Landrum testified: “On the day of the wreck [Willie High-tower] was working for me, driving the vehicle under my control and my direction. The only purpose Willie had in the truck was to assist me in getting [to] and to do the work that I directed him to do.”