At about 6:00 o’clock p. m. eastern standard time on March 24, 1948 Emral McGuire, his wife Kansada McGuire, and their son Leroy McGuire were traveling south on U. S. Highway No. 23 about 3 or 4 miles south of Pikeville. A truck, owned and being operated by appellee East Kentucky Beverage Company, Tom Dyer driving, was traveling north on the same highway following a truck hauling logs. The log truck slowed or stopped in front of Dyer who, to avoid running intо it, steered appellee’s truck across the south bound traffic lane of the highway, where it collided with the automobile of McGuire.
Mrs. McGuire was severely injured and instituted action against appellee to recover for her injuries. As a result of the injuries she died on the 27th day of May, 1948, whereupon the action was revived in the name of her husband, as administrator of her estate. By amended petition, the personal representative sought recovery for her medical, hospital, and funeral expenses, loss of wages, and damages to the .estate 'occasioned by her death. Another.suit was instituted by Emral McGuire, in his individual capacity, wherein he sought to. recover for .'his injuries, his medical and hospital expenses, loss of time, impairment of earnings, loss of consortium, and damages to his automobile. Appellee counterclaimed for damages to its truck. On motion of appellee, over objection of appellant in each action, the.court entered an order directing the- cases to be tried together, to which ruling the appellant in each case excepted. The joint trial resulted in. a verdict for appellee in each case, and judgments were entered accordingly.
As grounds for reversal, appellant contends (1) that the court erred in admitting evidence of two divorce actions filed 5 and 6 years respectively befоre the accident, and that such error was especially prejudicial in the administrator’s action(2) the court erred in the admission of evidence of the subsequent marriage of the surviving husband which occurred approximately 3 months after the death of his first wife, and that the admission of such evidence was especially .prejudicial in -the action of the administrator; (3) the court erred to the рrejudice of appellants in- ordering the actions to be tried together; and, (4) the court erred in failing to instruct the jury on contributory negligence of the driver of appellee’s truck as an affirmаtive defense to the counterclaim asserted against Mr. McGuire in his individual case.
Since the' evidence referred to in the first and second complaints was introduced in mitigation of damages, and might have such effect when viewed as a whole, we will consider the complaints as one. On direct examination, in support of the claim of $10,000 for loss of consortium Mr. McGuire was asked the following questiоns and made the following answers:
“Q. What were your relations with your wife? A. I was her husband.
“Q. What were those relations, were they normal relations between husband and wife or had ■you had trouble? (Our emphasis.) A. They were normal.
“Q. Tell the jury the kind of a wife Mrs. McGuire was to.yоu? A. She was a real wife.”
It will be ■ noted that Mr.. McGuire’s answer to the second question above quot,ed negatives the fact that there- had ever ■been any dissension between him and -his
The evidence of Mr. McGuire’s remarriage within three months after the death •of his wife was susceptible of the inference ■that his marital difficulties with his first wife had 'Continued to a greater or less degree for the period of time which transpired between the filing of the divorce actions and her death. We think the evidence -of remarriage was rendered cоmpetent by the introduction of evidence showing actual pre-existing marital difficulties. But, •since appellee argues to the contrary, we deem it necessary to observe that, standing alonе, the evidence would not have been competent for the purpose of establishing a limit on the time after her death the husband suffered from the lack of society of his first wife. An action for the loss of consortium is of common law origin, and the recovery in such action, under the common law, was, as it now is, limited to compensation for the loss which accrued to the husband from the date of the injuries to the date оf death or recovery of the wife. Eden v. Lexington and Frankfort Railway Company, 14 B.Mon. 204; Louisville & N. Railway Company v. McElwain,
The rule is that where two or more actions are brought by different plaintiffs against one defendant, and the issues
It is unnecessary to consider the question concerning the alleged error of the court in failing to give a contributory negligence instruction in defense of the counterclaim, since the аmount awarded appellee on the counterclaim was remitted and the counterclaim was dismissed.
The judgments must be reversed with directions that appellant in each case be granted a new trial to be conducted in conformity with this opinion.