Galtney v. Wood , 149 Miss. 56 ( 1928 )

^* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 833, n. 1; Damages, 17CJ, p. 1059, n. 63 New; p. 1091, n. 85; Husband and Wife, 30CJ, p. 593, n. 30; p. 967, n. 81; On excessiveness of verdicts in actions for personal injuries not resulting death, see annotation in L.R.A. 1915F, 30; 46 A.L.R. 1230. Mrs. Eva Wood, appellee, filed her declaration in a suit for damages for personal injuries sustained by her in an automobile collision, claimed to have been inflicted upon her by the negligence of D.K. Galtney, doing business as the Galtney Motor Company, and Burt Henderson, appellants herein. The suit was instituted for compensatory and punitive damages, and for doctor's bills, hospital bills, etc., expenses incurred in her care and treatment made necessary by her injury, an itemized account of which is attached to the declaration. The defendants, appellants herein, filed a plea of general issue, and gave notice that they would offer proof to show that plaintiff, appellee herein, was guilty of contributory negligence.

The proof showed that on the 31st day of January, 1927, in the city of Corinth, at the intersection of Main and Madison streets, Mrs. Wood was severely injured. Both streets are paved, and largely used by automobile traffic. Madison street runs north and south crossing Main street, which runs east and west. The latter street connects the I.C. Station with the city. In the middle of Main street is a parkway, with pavement on either side. On this occasion, Mrs. Wood, driving a Star sedan, was traveling south on Madison street. Burt Henderson, an employee of the Galtney Motor Company, was traveling west on Main street in a Lincoln sedan, in the discharge of his duties, having another employee of the company in the car with him at the time the accident occurred. The Lincoln car driven by Henderson weighed from three thousand five hundred to four thousand pounds, and the sedan driven by Mrs. Wood, from one thousand eight hundred to two thousand pounds. Main street, where Henderson was driving, had a grade of about three per cent, and he was going down grade. Mrs. Wood was traveling across this street at the rate of from ten to fifteen miles per hour; Henderson and his associate claimed that they were driving at the rate of about twenty miles an hour. Several witnesses testified, however, that they were driving at a rate of speed from forty to forty-five miles an hour. Mrs. Wood testified that, just before entering Main street at the crossing, she looked to the right and to the left, and, upon seeing no one, proceeded to cross.

The plaintiff's evidence tended to show that the view was unobstructed fifteen or twenty feet north of the north line of Madison street, and on Main street back to the east about one hundred fifty feet or more. The defendant's testimony tended to show that for about one hundred fifty feet back on Main street an automobile or other person could not be seen for the trees and a house.

The employees of the defendant testified that, when they discovered the approach of Mrs. Wood's car, the brakes of the car were applied and its rear wheels locked at a time when they were about thirty or thirty-five feet from the car of Mrs. Wood. Some witnesses testified that the Lincoln driver applied the brakes to his car about ninety feet from the point at which he collided with the Star sedan driven by Mrs. Wood, that the car made its wheel impression on the asphalt pavement for that distance, and that Mrs. Wood's car was knocked out of Madison street into the parkway a distance of twenty-one feet, and turned around, so that, instead of being headed south, the way she was going, it was turned back to the east, part of the car being thrown up on the parkway around which was a six-inch curb. Mrs. Wood was found unconscious in the car.

There was testimony to the effect that witnesses were attracted to the Lincoln because of the rate of speed at which it was going. The front door of the Star sedan was broken in, and the car otherwise wrecked.

The proof showed that Mrs. Wood's left arm was broken in two places, two of her ribs fractured, her body almost wholly bruised, and that her hip was injured. She was immediately taken to a hospital, where she remained for seventeen days before she was able to be removed to her home, after which it was a long time before she was able to be up any at all; and at the trial of this cause, in July, 1927, she was up only for a part of the time. She testified that since her injury she had been unable to perform any of her household duties, unable to attend church, to do any church work or work in the societies, as was her custom, or to attend any social functions which she was accustomed to going before her injury. The physician stated that he could not tell how long it would take for her to recover, nor whether or not the injury was permanent.

The jury returned a verdict in favor of the plaintiff, for five thousand dollars, from which the defendant prosecutes an appeal here.

1. The first assignment of error we shall consider is the contention of the defendant, appellant here, that the verdict was grossly excessive. We cannot adopt this view suggested by counsel for appellant that the injury complained of, and undisputed in this record, with the physical pain and mental suffering arising therefrom considered, and more than six months having intervened from the time of the injury to the trial, and the physician not being able to say whether or not she was permanently injured, should not sustain a verdict for five thousand dollars. We do not think we are warranted in disturbing the verdict in this case as being grossly excessive. In fact, if there had been no claim for punitive damages, we could not say that the verdict was excessive as compensatory damages for the injuries and suffering sustained.

2. Counsel for appellant insists that the court erred in instructing the jury that they "might find for punitive damages," and also objects to the form of the instruction on punitive damages. We do not think that there is any merit in this assignment, nor was the court in error in granting an instruction to the effect that it was authorized to allow punitive damages if the jury found that the defendant operated its car at a dangerous, reckless, and unlawful rate of speed. The fact that the plaintiff's evidence, through some of the witnesses, showed that the defendant was driving at a rate of speed equal to or exceeding forty miles an hour when approaching the intersection of the street crossing his pathway upon which she was driving, warranted the court in submitting the question of punitive damages to the jury. If the theory that the car was driven at so reckless a rate of speed as to endanger life and limb, is correct, it is intensified when the defendant's testimony, that he could not see one approaching on Madison street, is considered. While we cannot say that the jury awarded punitive damages in this case considering the injuries, it was not error to have submitted the matter to the jury on the plaintiff's theory of the case.

3. Appellant contends that the court erred "in admitting, over defendant's objection, the evidence of O.M. Wood, husband and witness for the plaintiff, to the effect that Mr. Galtney had told him he carried insurance against such accidents, and for him to go ahead and take care of his wife and present the bill to the insurance company." We are setting out here exactly what occurred in the lower court:

"Q. Mr. Wood, right after this accident did you talk to Mr. Galtney, or Mr. Galtney, one of the defendants, talk to you about the accident? A. Yes, sir; Mr. Galtney came to me in the afternoon and — you want me to tell what he said?

"Q. Yes. A. And he said, `I am very sorry this accident happened, but I carry insurance against such accidents as that' —

"Mr. Conn: If the court please, I object to that.

"The Court: It is not competent, of course, against the insurance company, but it is competent any statement be made about how the accident occurred, but I don't think that is competent.

"Q. Did he make any statement about making out your account and giving it to him?

"Mr. Conn: Now, I object to that, if the court please, as that is an offer to compromise.

"The Court: No, sir; that is not an offer to compromise. Go ahead. (Defendant excepts.) A. Mr. Galtney told me to go ahead and take care of her and to present the bill to the insurance company.

"Mr. Conn: Now, if the court please, I ask that that be excluded.

"The Court: That is competent. (Defendant excepts.)"

It will be noted that the court stated that it was not competent upon the first general objection as to the insurance company, but that a statement as to how the accident occurred was competent. According to our understanding of the record, the reference to the insurance company was held to be incompetent by the court. The question asked after that ruling of the court did not call for nor suggest that any reference be made in the answer of the witness to any insurance which the defendant might have carried, and the objection was not directed to that point, but, as stated by the counsel, his objection was based upon the fact that it was incompetent, because "it was an offer to compromise." The court properly held that it was not an offer to compromise. A part of the statement was incompetent — that part which referred to the insurance — and from the previous statement of the court, if counsel had directed his objection to the information regarding the insurance volunteered by the witness, the court would have instructed the jury not to consider it. But counsel did not do this. He made no specific objection on the ground of the reference by the witness to an insurance company, or the fact that the defendant was protected by insurance. Counsel must state to the court below fairly the point upon which he desires a ruling. He cannot make an objection, in the court below, upon one ground, and then present an entirely different view in this court. It is an unsafe practice to make general objections to the evidence in the court below and expect a reversal upon the specific objection presented for the first time to this court. Adhering to the rule announced in the case ofHerrin, Lambert Co. v. Daly, 80 Miss. 340, 31 So. 790, 92 Am. St. Rep. 605, where the counsel sought to elicit, for the purpose of influencing the jury, the fact that some one was back of the firm who would satisfy the judgment, the court there overruled the objection and held that the effort was an attempt to seduce a verdict from the jury on the ground that the insurance company, and not the defendants, would be affected. The case here is not at all similar to that one — in fact, the point presented here was not made in the court below, and, if it had been, we are not at all sure we would be willing to reverse this case for that reason, because the court below ruled correctly when given an opportunity, and the questions of counsel were not calculated to elicit the answer volunteered by the witness.

4. The fourth assignment of error is as follows:

"In admitting testimony, over defendant's objection, relative to doctor's bills, hospital bills, nurse's bills, etc., and in permitting these items to be considered by the jury."

The declaration charged that the wrong and injuries detailed caused her "to be at large expense, as set out in the first count," etc. The court permitted the plaintiff's husband to testify as to the correctness of the itemized account, but excluded therefrom board for her husband and boys, difference in grocery bill, and services as housekeeper. The court declined to permit the appellant, on cross-examination, to show whether or not the husband or the wife assumed liability, contracted to pay, or had paid, the hospital bills, nurse's bill, and doctor's bill; the court holding that it did not make any difference which one, the husband or the wife, incurred liability, the wife was entitled to recover therefor.

We think the court erred in holding that the wife could recover irrespective of whether or not she had contracted to pay the bills sued for. It is true that married women have been emancipated from the disability of coverture in this state, but it is likewise true that it is the duty of the husband, and he is primarily bound, to furnish necessities to his wife, such as the items sued for herein.

In the case of Dunbar v. Meyer, 43 Miss. 679, this court held as follows:

"This was fully met by evidence that Sarah M. was the wife of W.H. Dunbar, and that the merchandise was bought by her, and was necessary to herself and children. In this condition of facts the liability was evidently on the husband. It is a principle of law growing out of the marital relation, as a consequence of the obligations assumed by the husband upon marriage, that he shall supply the wife with all necessaries convenient and suitable to their station in life. Cromwell v. Benjamin, 41 Barb. [N.Y.] 558. The infancy of the husband is no discharge from these obligations nor an answer to a claim for their fulfillment.Cantine v. Phillips, 5 Har. (Del.) 428; Cole v. Seeley, 25 Vt. [217] 230 [60 Am. Dec. 258]. If the husband neglect to provide these necessaries, the wife may make the purchases; and, though he may dissent, he shall nevertheless be liable therefor. Etherton v. Parrott, 1 Salk. 118. The wife possesses no original inherent power to bind the husband; yet from the circumstance of cohabitation, and the goods being consumed in his family, the assent of the husband will be presumed. Ogden v. Prentice, 33 Barb. [N.Y.] 164. Justice STORY, in his treatise on Contracts, section 98, states that, if the husband omits to furnish the proper necessaries, he impliedly makes his wife his agent to procure them for herself. According to many of the cases, cohabitation alone will supply the inference of this authority."

It is true that this decision was rendered before the Code of 1880 and the enactment of the statute emancipating married women from the disability of coverture, but the common law still obtains in this state, and we think that, notwithstanding the removal of this disability of coverture and the grant of suffrage to her, we are still compelled to hold that the common-law rule obtains. It was not competent for the appellee, Mrs. Wood, to show that she had contracted to pay these bills, and it was not necessary for the defendant to interpose a special plea on this behalf for the reason that the matters affirmed in the declaration were put in issue by the plea of general issue. Of course, a married woman, emancipated, can make any lawful contract; and, if it is shown by the plaintiff she had contracted to pay these bills or had paid them, these items would be properly considered as part of the damages to be submitted to the jury for allowance or disallowance. However, she not only failed to show that she paid these bills, or incurred liability therefor, but prevented the defendant from ascertaining which of the two, husband or wife, was bound. See 30 C.J. et seq.;Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785; Novy v. Breakwater Co., 89 Conn. 14, 22, 92 A. 668. In the absence of proof to the contrary, the husband is primarily liable for the wife's necessary doctor's bills, medicine bills, and hospital bills unless she shall show that same have been paid or contracted to be paid out of her separate estate. This rule is not at all in conflict with, or controlled by, anything in the case of Thomas v. Weeks, 115 Miss. 602, 76 So. 559. The instruction complained of in that case was that she (the wife) might recover for all money she had expended on account of said injuries. In other words, the court told the jury, if she had paid the bills, she could recover.

Counsel for appellee cites the cases of Krisinger v. City ofCreston, 141 Iowa, 154, 119 N.W. 526, and Ashby v. Elsberryet al., 111 Mo. App. 79, 85 S.W. 957. An examination of these authorities convinces us that they sustain the rule announced by this court, likewise the case of Adams Express Co. v.Aldridge, 20 Colo. App. 74, 77 P. 6. In the case of theChesapeake Ohio R.R. Co. v. Stump, 165 Ky. 708, 178 S.W. 1037, the wife had paid all the bills, and the contention there was that, because she got the money from her husband, she ought not to recover; but the court declined to adopt that theory, saying that it made no difference because she paid the bill. There are cases from the Missouri court which seem to support the appellee's theory. We decline to follow that court, in view of the fact that we do not think the emancipation of women in this state as to separate property rights has relieved the husband from the obligation to furnish necessities to his wife, and we think the jury considered these items in making up its verdict. In this regard see section 2185, Hemingway's 1927 Code (section 2517, Code of 1906). Section 2289, Code 1880, does not vary the common-law rule.

Unless appellee shall enter remittitur for these items amounting to five hundred seventeen dollars and eighty cents, this case will be reversed and remanded; but, if remittitur for such amount is entered, the case will be affirmed.

Affirmed.