Washington & Georgetown Railroad v. Hickey, 12 App. D.C. 269

Washington & Georgetown Railroad v. Hickey

12 App. D.C. 269 | D.C. Cir. | 1898

Mr. Chief Justice Alvey

delivered the opinion of the Court:

1. It is rather difficult to fully comprehend the ground upon which the first assignment of error is based. By the granting of the fourth prayer of the plaintiff, the jury were simply instructed that if, upon the whole evidence, they should find the plaintiff entitled to recover, they could find their verdict against both the defendants, or against one of *274them only, as they might find the evidence to justify. There was abundant evidence to be considered by the jury as to the negligence of both defendants; and this being an action of tort, the right of recovery was both joint and several. And while the verdict, in view of the facts of the case, may well be the subject of remark or criticism, in acquitting one defendant- and finding the other guilty of negligence in producing the injury, yet, as matter of law, the instruction of the court was entirely correct. The same instruction was given by the court, and approved on appeal, in the former case, brought by the husband and wife. In that case, it was granted as the fifth prayer offered by the plaintiffs. 5 App. D. C. 442, 443; 166 U. S. 521. The first error assigned, therefore, cannot be sustained.

2. The second error assigned has no better foundation for its support than the first. The fifth prayer of the plaintiff, as granted by the court, hardly embraced all the elements of damages that the jury might well have been allowed to consider, in view of the evidence before them. By the prayer, the jury were instructed that they should award such damages as would fairly and reasonably compensate the plaintiff for the actual financial loss sustained by him, by reason of the injuries to his wife, including the costs reasonably incurred by the plaintiff for medical attention, medicines and appliances for his said wife, and also including such sum as would fairly and reasonably compensate him for the loss of his wife’s society during the period that she was disabled, and including the expenses reasonably incurred in the employment of nurses and servants by reason of his wife’s disability; and also such sum as would fairly compensate him for loss of time from his business in consequence of his wife’s disability, if any such the jury should find from the evidence.

The claim for the loss of services of the wife during the. time of her disability, occasioned by the injury, appears to have been disallowed by the instruction given to the jury, *275though such claim was made in the declaration. This dis-allowance for services of the wife, we are informed, was because there was some proof to show that the wife, at the time the injury was received, was in a state of impaired health; though it was shown by the testimony of the husband and of the family physician, that her health was at that time fairly good. The general principle, doubtless, is that the husband may, in a suit by him to recover damages for injuries inflicted upon his wife, recover for the loss of the services and of the society of his wife, and also the costs and expenses incurred by him for medical attendance, nursing and the like. Matteson v. New York, etc., R. Co., 35 N. Y. 487; Mowry v. Chaney, 43 Iowa, 609; Smith v. St. Joseph, 55 Mo. 456. It is clear, therefore, the defendant had no good cause of objection to the prayer, and the error assigned thereon can not be sustained.

3. The third assignment of error presents a question as to the right of a jury, in their discretion, in making up their verdict, to take into consideration and allow interest on the money actually paid out for medical attendance medicines, and nursing the wife, made necessary by the injuries received by her; and to incorporate such interest in the verdict by way and as part of the damages. The plaintiff is certainly entitled to be indemnified for the necessary and reasonable expenditure made by him; and it would seem to be a settled principle, in cases like the present, as well as in other cases of wrong, that the jury may, in their discretion, allow in their verdict interest on the money actually laid out and expended by the plaintiff, by way of damages. This principle is constantly applied in actions of trover, trespass, and case, and there is no reason why it does not equally apply in an action whore money has been expended by reason of a personal injury inflicted. The decisions would seem to leave no doubt upon this question. Thomas v. Weed, 14 John. 255; McIlvaine v. Wilkins, 12 N. H. 475; Lindsey v. Danville, 46 Vt. 145; Frazer v. Bigelow Carpet Co., 141 Mass. 136; *276Duryee v. New York, 96 N. Y. 477; Railroad v. Sears, 66 Ga. 499; Lincoln v. Claflin, 7 Wall. 139. It is true that, in actions of tort, at least in this jurisdiction, interest is not allowable upon the judgment recovered. Washington and Georgetown R. Co. v. Harmon, 147 U. S. 571. But that is quite a different question from that here presented. Whether a judgment bears interest or not is purely a legal question, that can only be decided by the court. But in actions of tort, interest can only be allowed as damages, and whether it shall be allowed or not rests entirely in the discretion of the jury, in arriving at what is a fair and just indemnity of the plaintiff for the wrong suffered.

Finding no error, the judgment must be affirmed; and it is so ordered. Judgment affirmed.