Opinion
October 20, 1960
Appeal from the Oneida County Court.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Judgment and order unanimously affirmed, without costs of this appeal to either party. Memorandum: Upon the record before us it is impossible to conclude that the verdict of the jury of no cause for action in this derivative action of the plaintiff husband should be reversed. The duty rested upon appellant after having taken an appeal to prepare and submit a supplemental record containing such parts of the testimony as were not contained in the record submitted by defendant in her separate appeal from a judgment in favor of appellant's wife. The present record contains no evidence as to the damages, if any, sustained by appellant. In passing we note, however, that the charge of the trial court was wholly inadequate as to the nature of the husband's cause of action. The jury should have been instructed, as it was not, that the right of the husband to recover must be tested by the right of the wife to recover the damages accruing to her personally for the injuries which caused the loss of consortium and the consequent expenses to the husband. When the jury returned what may have been inconsistent verdicts appellant took no action to have the jury properly instructed and retired for further consideration of the two actions. In the absence of a proper record there may be only speculation as to whether the action of the jury was due to a failure to receive proper instructions or a finding that appellant sustained no damage.