Summary
In Curry v. Board of Commissioners, supra (135 Ohio St. 435), there was no syllabus, but the per curiam opinion of the court reveals that the plaintiff made a claim only for the loss of his wife's services, and not any claim for the loss of her consortium generally in addition to the loss of services.
Summary of this case from Williams v. WardOpinion
No. 27429
Decided May 24, 1939.
Negligence — Husband's damages for loss of wife's consortium not involved — Excessive verdict — No evidence of loss of services of wife.
APPEAL from the Court of Appeals of Franklin county.
The plaintiff instituted this action in the Court of Common Pleas to recover for the loss he claims to have suffered when his automobile was damaged and his wife was injured on August 17, 1934, by reason of the defendant's negligence in repairing a certain public highway upon which the plaintiff's wife and son were driving.
The trial resulted in a general verdict and judgment for the plaintiff in the sum of $1,000.
Upon appeal on questions of law the Court of Appeals reversed the judgment of the trial court and remanded the cause for retrial for the reason that "the verdict of the jury was excessive and should be confined to the special damages proven in the sum of $65.45."
The case is in this court for review upon the allowance of the plaintiff's motion to certify.
Mr. Robert M. Draper, for appellant.
Mr. Ralph J. Bartlett, prosecuting attorney, Mr. David B. Sharp and Mr. Robert P. Barnhart, for appellee.
The Court of Appeals held that the jury's verdict was excessive with respect to the plaintiff's claim for loss of consortium and also as to his claim for loss of his wife's services.
In discussing the former, the Court of Appeals followed the reasoning of this court in the case of Smith v. Nicholas Bldg. Co., 93 Ohio St. 101, 112 N.E. 204, L.R.A. 1916E, 700, Ann. Cas. 1918D, 206, and held that, in an action predicated upon negligence, a husband is not permitted to recover for loss of the consortium of his wife. However, a careful study of the record in this case discloses that this question was in fact not before the Court of Appeals inasmuch as the trial court did not charge the jury that an allowance could be made for this item. On the contrary, the phrase "loss of services" appears eight times in the charge, while the word "consortium" is not mentioned; and in one of his statements the trial court said, "In other words, the loss of services constitutes the gist of the action where the injury complained of is due to negligence. It is not injury associated with what has been designated the sentimental side of the marital relation and wholly unrelated to services that gives rise to the right of action. The damages are awarded not by way of solace to the husband for loss of affection, comfort, companionship and society incidental to the marital relation." It is to be presumed that the jury followed the trial court's instructions and that nothing was allowed for loss of consortium.
In discussing the plaintiff's claim for loss of services the Court of Appeals correctly observed that according to the evidence certain of the wife's customary duties were performed gratuitously by other members of the family, and that no recovery could be had therefor. Laskowski v. People's Ice Co., 203 Mich. 186, 168 N.W. 940, 2 A. L. R., 586. Likewise the Court of Appeals was correct in its statement that the record is devoid of evidence as to the value of the lost services of the plaintiff's wife. Reliance was placed upon the second paragraph of the syllabus in the case of Hanna v. Stoll, 112 Ohio St. 344, 147 N.E. 339, in which this court said, "Where impairment of earning capacity is pleaded as special damages, it is essential that evidence be adduced from which an estimate thereof may be made by the jury, and in the absence of any evidence upon the subject, it can not properly be submitted to the jury as an element of damages." However, the plaintiff relies upon the pronouncement of this court in the case of Hossler, Exr., v. Trump, 62 Ohio St. 139, 56 N.E. 656, to the effect that "When, upon the trial of the general issue, in an action upon a quantum meruit for services of a domestic character, the plaintiff offers evidence showing the facts from which the promise to pay may properly be inferred, and also showing the nature and extent of the services rendered, the case should be submitted to the jury although no witness expresses an opinion as to the value of the services." This is still the law, but unfortunately the record contains no evidence whatsoever as to the extent of the services performed by the plaintiff's wife. As observed by the Court of Appeals "there was the very general statement that she took care of the chickens, but the evidence is silent as to whether it was two or two hundred. There is nothing at all as to the age or kind or what amount of attention was given; the same is true as to the garden. The only statement in the evidence is she helped in the gardening, but no other details. She also helped with the milking. There is no evidence as to the number of cows or how many she milked. Under this state of the record the jury could do nothing more than guess."
It should be added that the plaintiff did offer proof showing damage to his automobile in the amount of $26.45 and necessary medical, hospital and nursing expense in the sum of $39. These items constitute the sum of $65.45 with which the Court of Appeals found no fault.
Under the circumstances the Court of Appeals was correct in finding the general verdict excessive, and in remanding the cause for retrial.
Judgment affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.