Opinion
6 Div. 114.
May 17, 1928. Rehearing Granted June 7, 1928.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Altman Koenig, of Birmingham, for appellant.
The husband may recover for loss of the society and services of his wife, for expenses incurred in the procurements of such medical or surgical skill as ordinary prudence would suggest to be necessary in the treatment of her injury, for the value of his services while nursing her, and for her funeral expenses, where such damages proximately result from injuries wrongfully inflicted upon her. Morrison v. Clark, 196 Ala. 670, 72 So. 305; People's Home Tel. Co. v. Cockrum, 182 Ala. 547, 62 So. 86; Birmingham. So. Ry. Co. v. Lintner, 141 Ala. 420, 38 So. 363, 109 Am. St. Rep. 40, 3 Ann. Cas. 461. And he may maintain action for the loss of his wife's society and services, etc., although the injury caused her death, if her death was not immediate, although only a brief period intervened between the injury and her death. People's Home Tel. Co. v. Cockrum, supra; Cooley on Torts (3d Ed.) 470; 30 C. J. 971; 13 R. C. L. 1420; 15 A. E. Ency. of Law (2d, Ed.) 862. The right of a husband to recover for the loss of his own time and the necessary funeral expenses incurred resulting from his wife's death, caused by the negligent act of the defendant, should be upheld, regardless of any statute. 13 R. C. L. 1420; Philby v. Northern Pacific Ry. Co., 46 Wn. 173, 89 P. 468, 9 L.R.A. (N.S.) 1193, and note, 123 Am. St. Rep. 926, 13 Ann. Cas. 742.
Nesbit Sadler, of Birmingham, for appellee.
Each count attempts improperly to join in one and the same count two separate causes of action. Sudduth v. Central Ry. Co., 197 Ala. 393, 73 So. 28; Birmingham Ry. Co. v. Norton, 7 Ala. App. 571, 61 So. 459; Southern Ry. Co. v. McIntyre, 152 Ala. 223, 44 So. 624; Iron City v. Hughes Co., 144 Ala. 608, 42 So. 39; Friddle v. Braun, 180 Ala. 556, 61 So. 59; Birmingham Co. v. Nicholas, 181 Ala. 491, 61 So. 361. The action for wrongful death must be brought by the administrator. Code 1923, § 5696.
It is unquestionably settled by the decisions of this court, that, notwithstanding the wife must sue for personal injuries to herself, the husband may maintain an action for compensatory damages, not for the injury, but resulting therefrom, such as the loss of her services or society, the cost of nursing and caring for her, etc. People's Home Tel. Co. v. Cockrum, 182 Ala. 549, 62 So. 86; Birmingham Southern R. Co. v. Lintner, 141 Ala. 420, 38 So. 363, 109 Am. St. Rep. 40, 3 Ann. Cas. 461; Southern Ry. Co. v. Crowder, 135 Ala. 417, 33 So. 335; Morrison v. Clark, 196 Ala. 670, 72 So. 305. This is true, although the injury produces death which is not immediate, and notwithstanding the right of action for the wrongful death of the wife is confined to her personal representative under the terms of section 5696 of the Code of 1923.
"But if the injury resulted in her death, this cannot, at the common law, be taken into account, either as the ground of action or as an aggravation of damages, and the husband's recovery must be limited to the loss suffered intermediate the injury and death." Cooley on Torts (3d Ed.) p. 470. "At the common law no civil action can be maintained for the death of a human being, caused by the wrongful act or negligence of another, or for damages suffered by any person by reason of such death; but where death does not at once ensue, a person entitled to the services of the one injured, may recover for the loss accruing between the injury and the death, and such action is not barred by the death." Hyatt v. Adams, 16 Mich. 180.
The counts of the complaint in question do not seek a recovery for compensatory damages alone resulting from the injury between the infliction of same and the death of the wife, but charge the cause of the damage as resulting both from the injury to the wife and her death. The counts say, "And the plaintiff was damaged as the proximate result of said injuries and the death of his wife," and also claims damages which accrued subsequent to the death of the wife. It is not a question of claiming nonrecoverable damage in a complaint otherwise good and to be eradicated by a motion to strike rather than by demurrer, but the gravamen of the action is based both upon the injury to and the death of the wife.
We think that the trial court properly sustained those grounds of demurrer proceeding upon the theory of a misjoinder and the statement of two separate and distinct causes of action in the same count. Sudduth v. C. of Ga. R. R., 197 Ala. 393, 73 So. 28; Southern R. Co. v. McIntyre, 152 Ala. 223, 44 So. 624.
The judgment of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.
Upon Rehearing.
While amended count A contains the above quotations, as well as the other counts, upon a reconsideration of said count A we are of the opinion that it does not violate the rule against a misjoinder. It is predicated upon injuries to the wife, and claims no damages incurred subsequent to or resulting from her death, and is confined to damages intermediate the injury and death. The rehearing is granted, the judgment of affirmance is set aside, as well as the nonsuit, and the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.