Harden v. Alabama Great Southern Railroad Co. , 45 Ala. App. 301 ( 1969 )

THAGARD, Presiding Judge.

Consolidated .action by husband for loss of consortium and services of wife and action of wife for damages arising out of injuries to her nervous system. The Circuit Court, Jefferson County, J. Russell McElroy, J., entered judgment for wife in her suit and judgment for defendant in husband’s suit. The defendant in the case of Mrs. Floy Harden filed a motion for new trial which was granted and the judgment ' and verdict were vacated and set aside.

Mrs. Floy Harden, appellant, filed her suit in the Circuit Court of Jefferson County, to recover damages for injuries to her nervous system that she allegedly sustained -when her automobile became bogged down in loose slag which covered a railroad grade crossing and was struck by a railroad train of the appellee as the appellant ran from the automobile.

Appellant’s husband, Edward J. Harden, filed his suit contemporaneously with his wife’s suit and claimed damages for loss of services and consortium of his wife, and for money spent for doctors and medicines necessary to treat his wife’s injuries.

Both suits alleged negligence of the defendant in failing to maintain its public grade crossing in a reasonably safe condition and negligence of defendant in operating its railroad train at an excessive rate of speed on approaching said crossing.

The cases were consolidated and tried together by consent of the parties. The jury returned a verdict for the wife and assessed her damages at $9,000.00 and returned a verdict for the defendant in the husband’s suit, and judgments were rendered accordingly.

The defendant in the case of Mrs. Floy Harden filed a motion for a new trial which was granted on grounds 35, 37, and 40 only. These grounds dealt only with inconsistent verdicts. From this ruling, Mrs. Floy Harden appeals, complaining that the trial court erred in granting appellee’s motion for new trial on the basis of an inconsistency between the verdicts rendered in the consolidated cases.

Both the appellant and appellee have cited Smith v. Richardson, 277 Ala. 389, 171 So.2d 96, and Carter v. Franklin, 234 Ala. 116, 173 So. 861, as pertaining to the issue of inconsistent verdicts.

In the case of Smith v. Richardson, supra, the jury returned a verdict for the father in his derivative suit for loss of services and medical expense which resulted from his child’s broken leg, but held for the defendant in the child’s suit for damages for personal injury. Also, in the case of Carter v. Franklin, supra, the jury rendered a verdict against an employer based on respondeat superior doctrine and yet returned a verdict against the plaintiff in the suit against the tort feasor agent.

These two cases are prime examples of inconsistent verdicts.

.In the case at bar the trial court jury rendered a verdict for the injured wife but held for the defendant in the husband’s derivative suit. The record does not show that the husband presented any evidence showing specific damages as to loss of services and consortium. As to loss of consortium and services the court stated in Cook v. Sweatt, 282 Ala. 177, 209 So.2d 891, as follows:

“Compensatory damages to the husband for loss of consortium due to personal injuries to the wife cannot be ascertained by any fixed standard, but are left to the jury’s sound discretion, subject to correction by the court .only when there has been a clear abuse of such- discretion as will evidence passion or bias for or against the plaintiff or defendant.

“The award to the wife in her suit against the defendant does not indicate the jury was influenced by any bias or prejudices, but on the other hand supports a reasonable judicial conclusion that they were free of passion or prejudice in evaluating the evidence and in assessing •'damages.”

The court went on to say in Cook v. Sweatt, supra, that:

“The award by the jury of a substantial verdict for Mrs. Cook, and awarding nothing for appellant, are not inconsistent, verdicts. The jury was entitled, to conclude- from the- evidence that even though the defendants were -guilty of negligence as charged, the plaintiff-husband suffered no damages therefrom. Pagano v. Morrison’s Textiles, Inc. (Fla.App.), 149 So.2d 897.”

In regard to the $65.00 doctor bill' which Mr. Harden paid to a psychiatrist who treated his wife, the Supreme Court has said in Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 53 A.L.R. 840:

“In every case where a party has incurred expense as the result of another’s wrong, only so much is recoverable therefor as is a reasonable and proper amount under the circumstances. Manifestly, the party so claiming must show to the jury what is reasonable and proper, as a necessary basis for their finding. If the subject be a matter of common knowledge, and the nature of the charge or expense be before the jury, the sum paid may serve as some evidence of reasonable value in the absence of evidence to the contrary. B. R. L. & P. Co. v. Humphries, 172 Ala. 495, 497, 55 So. 307, citing 3 Suth. on Damages (2d Ed.) 2674. Otherwise, there- being no evidence to show what is a reasonable amount, the defendant must either-move for the exclusion of the testimony as to payment or liability to pay, at the close of the evidence, or he must ask for an affirmative instruction against recovery in that behalf, as in other cases of failure of proof.”

As to the particular evidence of medical expenses incurred in Birmingham Amusement Co. v. Norris, supra, the court further stated:

“In the instant case, what would be a reasonable and proper charge for the surgical and medical attendance had by plaintiff was not a matter of common knowledge, but was clearly a matter for expert opinion. There being nothing in the evidence to show that the charge made was reasonable, or to show what would have been reasonable, there was no proper' basis for - a finding by the jury in, allowance of the claims; * *

In the case at bar, no showing was made in the trial court that the $65.00 Mr. Harden paid to the psychiatrist who treated his wife was a reasonable expense or charge. The-charges of a psychiatrist are not matters of common knowledge,’ but rather are matters for expert 'opinion. No expert testified as to the reasonableness of the charge for medical services rendered. At the close of the evidence presented in the instant case, the attorney for the defendant-appellee moved that the court exclude the testimony as to the $65.00 charge. The trial court overruled the motion. This ruling, we think, was in error.

Also, there was no evidence introduced as to specific damages suffered by the husband, Edward Harden, for loss of services and consortium. Evidence was entered in the case of Mrs. Harden that she suffered damages arising out of injuries to her nervous system.

Therefore, based on the evidence presented in the trial court, the jury rendered verdicts which were different but not inconsistent, even though they assessed damages for the wife and denied them to her husband.

We are most reluctant to reverse the distinguished and learned judge who tried this case and granted the motion for a new trial. But even Homer nods. So for the error pointed out the judgment granting the motion for a new trial is reversed and rendered.

Reversed and rendered.