Burt v. King , 142 Ga. 182 ( 1914 )

Beck, J.

(After stating the foregoing facts.)

1. In the motion for a new trial it is complained that the court erred in charging the jury as follows: “ She alleges that she was a saleswoman, and received, by permission of her husband, and enjoyed the proceeds of her own labor; that she was earning sixty-five dollars a month, and lost, on account of the injury, three months time, three months pay.” This charge is assigned as error on the ground that from the evidence in the case “it is clearly shown that the plaintiff is a married woman living with her husband, and therefore under the law any loss of services would have to be sued for by the husband and not the wife; and further, because there is no evidence which authorized the charge.” The plaintiff alleged in her petition that she was allowed by her husband to receive and enjoy the proceeds of her own labor, and upon the trial testified: “I was saleswoman for the Tailor Made Corset Company. I had been with them nearly six years. Their place of business was 6% Whitehall Street. My salary was sixty-five dollars a month. I had an arrangement with my husband by which I got my pay and paid expenses.” She further testified: “It is true I was working for myself and independent of my husband at that time, making a claim entirely for myself, for my lost time and expenses. I was independent of my husband in that respect.” It is clear, from a comparison of the charge with the part of the pleadings and evidence quoted above, that the criticism upon the charge is without merit.

2. In the motion for a new trial the plaintiff in error complains of the following charge of the court: “She also sues for medical bill which she alleges was necessarily incurred by reason of her injury, and that would be a legitimate item of expense; and as to that you would look to the evidence and give her, if you find for her, such an amount as would reasonably compensate for her physician’s bills necessarily incurred on account of the injury.” This charge was criticised on the grounds that “there was no evidence to authorize it; and because the plaintiff, being a married woman and living with her husband, was not entitled to sue and recover for the items mentioned in this portion of the charge; and because the court took from the jury the question of fact as to whether there was an agreement that the plaintiff might receive her own wages free from any claim of the husband and that she become liable for her own expenses.” We are of the opinion that the exceptions to this charge are well taken. As we have ruled above, the court, under the evidence and pleadings, was clearly right in submitting to the jury the question as to whether or not the plaintiff in the ease, although she was married and living with her husband, could recover for the value of her services and lost time. Under the ruling in the case of Georgia R. Co. v. Tice, 124 Ga. 459 (52 S. E. 916, 4 Ann. Cas. 200), if a wife is living with her husband and is engaged in a business or avocation from which earnings result, and receives an injury at the hands of a wrong-doer which incapacitates her, either in whole or in part, from performing the work of such business or avocation, she is not entitled to reoóvér on account of the loss thus occasioned; bnt it is also the law as recognized in the same case, where the husband has given his consent to her engaging in this business and receiving the earnings therefrom as her own, that she is entitled to recover for a tort which results in causing her loss of earnings for any period of time. And we think, as we have ruled above, that the court was clearly right in submitting to the jury, under the evidence which we have quoted, the question as to whether or not the plaintiff was entitled to recover for the loss of earnings resulting from the injury received through the period of time for which she was incapacitated to labor. But we do not think that the court should have stated to the jury, as he did in the extract from his charge now under consideration, that it follows as a mattér of law that the jury would give her, in case they found a verdict in the plaintiff’s favor, such an amount as would compensate for her physician’s bills necessarily incurred on account of her injuries. While the court, under the evidence, might have submitted to the jury the question as to whether or not, in case they found for her, under his instructions, compensation for her loss of earnings, they would also find for her an amount to compensate for her medical bills, the evidence is not so clear upon the question as to whether, under the arrangement with her husband, the plaintiff was to pay her own medical bills or for medical attention that she might receive, as to require a finding for her as to these items in ease they should find an amount to compensate her for loss of time and earnings. The jury might have believed from the evidence that under the arrangement with her husband she was to collect and hold her earnings as her own, without finding that she was also responsible for such medical attention as she might require; and in the absence of an understanding between her and her husband that she would be responsible for such medical services rendered her, the husband and not the plaintiff would be responsible for such medical attention; and as it does not appear that the wife had actually paid the amount of the physician’s bills, it might be that the husband was still-liable for them, in which ease the wife should not be entitled to recover for them. This was such error as will require the grant of a new trial, unless the plaintiff will write off from the verdict the amount of the physician’s bill, in which case the judgment will stand affirmed. This direction is given because the physician’s bill is a certain, fixed sum, to wit fifty dollars, requiring no calculation, and there is no controversy as to the amount of it.

3. There are no material errors in any other portions of the court’s charge complained of.

Judgment affirmed on condition.

All the Justices concur.