Indianapolis Traction & Terminal Co. v. Menze

Montgomery, G. J. Appellee recovered a judgment for $10,000 on account of personal injuries sustained by his wife in a collision between an automobile, in which she was riding, and a street-ear. Appellant’s motion for a new trial -was overruled, and this ruling is the only assigned'error urged upon our attention. 1. A new trial was sought upon the grounds that the court erred in giving certain instructions, and that the damages awarded are excessive. The third instruction given advised the jury, in effect, that the only contributory negligence that could defeat the action would be that on the part of the wife. It is suggested that contributory negligence on the part of the appellee would constitute a defense. Conceding the correctness of this proposition, it is not claimed that appellee was shown to have been in the slightest degree negligent, but, on the contrary, it appears to be undeniably true that he was wholly free from fault in connection with the accident. The omission of any statement concerning negligence, if any, on the part of appellee, was manifestly harmless. Pittsburgh, etc., R. Co. v. Higgs (1906), 165 Ind. 694, 4 L. R. A. (N. S.) 1081. There was evidence to the effect that appellee’s son, a boy sixteen years of age and residing with his parents, was in the employ of an automobile company at a garage, and was directed to take a machine over on Meridian street and deliver it to a customer. On the way he stopped at 814 North West street for his mother, who had but twice before ridden in an automobile, and proposed to take her to the family grocery. When a short distance from home, by a misturn of the lever by which the direction of the machine was governed, the automobile jumped the curb, and ran upon an open lawn, circled about among the trees and out to the street-car track, where it stopped for a short time, and was struck by a passing street-car. [34] 2. It is argued that if this minor son was the agent of appellee his contributory negligence would bar a recovery, and that the third instruction given arbitrarily and wrongfully deprived appellant of the benefit of this theory of defense. If this point were well taken, a question upon which we intimate no opinion, it could not work a reversal of the cause, since such alleged erroneous declaration was incorporated in even stronger terms in the eighth and ninth instructions given at appellant’s request, and the error, if any, was accordingly invited by appellant. Duncan v. State (1908), 171 Ind. 444, and cases cited. . The sixth and eighth instructions given at the request of appellee, upon the subject of the duties of motormen while operating cars along the public streets, and as to the measure of damages in this ease, were not erroneous. Mrs. Menze was forty-two years of age at the time she was injured, and, in addition to the performance of her household duties, rendered some assistance to her husband in connection with the manufacture and sale of cigars. Appellee testified that her services were worth $8 or $10 per week to him; that he had incurred an indebtedness of $620 for medical services and medicines in the treatment of her injuries; that she sustained a fracture of the skull, which aggravated a preexisting deafness, a fracture of the collar bone and shoulder blade, and was otherwise seriously bruised and injured; that she had not been able to perform her usual duties since the accident, and that some of her injuries are of a permanent character. 3. If the injury in this case had resulted in the death of Mrs. Menze the recovery could not have exceeded $10,000, and appellee’s portion would have been but one-third of the sum recovered. §285 Burns 1908, Acts 1899, p. 405. In that case he would have been wholly deprived of her services, society and companionship for all time. The limitations of that statute can have no applica [35] tion in actions for damages brought by the party wrongfully injured, but when such actions are brought, as this one is, for the loss of services of a wife or child this legislative declaration of the public policy of the State to fix the maximum value of the life of one person to others cannot be ignored. The limitation fixed by that statute does not in terms apply to actions like this, nor do we hold that it is controlling in this class of actions, and especially where special damages may be alleged and proved, but only that it is entitled to consideration. 4. 5. [36] 6. [35] The sum awarded in this case invested at five per cent would pay substantially the maximum amount which appellee claimed as the value to him of his wife’s services when she was in good health, without any deduction for occasional sickness, disability or depreciation of ability from the infirmities of age, leaving the principal forever unimpaired. Appellee was fifty-five years of age at the time of the trial, and his expectancy was seventeen and fifty-eight hundredths years. If we assume that he would live eighteen years, and his wife would live through that period, with unimpaired ability, the present worth of her services at $520 per year upon a five per cent basis would be $6,078.59, and adding to this the $620 account owing to the doctor, the total would be but $6,698.59. It may be urged that other medical bills will follow, but to offset such it is a matter of common knowledge, from the everyday experiences of mankind, that appellee’s wife would be subject to occasional attacks of illness, more or less serious, and would suffer a gradual diminution of her abilities. It may be contended that appellee’s testimony as to the value of her services was limited to her assistance in his cigar business, but we do not so understand it, nor do we think such inquiry would have been competent, as no special damages were claimed in the complaint. The term “services” in actions of this character include any pecuniary injury suffered by the husband from the loss of the aid, society [36] and companionship of his wife. The damages from the loss of the services, society and companionship of a wife is not in its nature susceptible of direct proof, but when the facts are shown the assessment of compensation must be committed to the sound discretion and judgment of the trial court or jury. Furnish v. Missouri Pac. R. Co. (1890), 102 Mo. 669, 15 S. W. 315, 22 Am. St. 800. But in any view we are able to take of the subject the verdict in this case appears excessive — so palpably excessive as to necessitate the granting of a new trial. In the case last cited, a judgment of $5,000, including a medical bill of $800, for injuries resulting in practically total disability was upheld. In Sherman, etc., R. Co. v. Eaves (1901), 25 Tex. Civ. App. 409, 61 S. W. 550, a judgment of $3,500 for injuries in some respects similar to those sustained by appellee’s wife, was held not excessive. In Zingrebe v. Union R. Co., etc. (1900), 56 Hun, App. Div., 555, 67 N. Y. Supp. 554, a judgment of $7,250 in favor of a husband forty-seven years of age was sustained. In the case of Missouri Pac. R. Co. v. Texas Pac. R. Co. (1890), 41 Fed. 311, a verdict of $10,000 in favor of the husband. was reduced to $5,000 by the court, where the wife was disabled from work and almost helpless for two years after the accident. We appreciate the impossibility of placing a value upon the services and society of a dutiful wife, but under the existing standards prevailing in this State for making pecuniary compensation for such injuries as are involved in this case, we feel constrained to hold that a judgment of $10,000 in favor of the husband is excessive. Appellant’s motion for a new trial on the ground of excessive damages should have been sustained. The judgment is reversed, with directions to sustain appellant’s motion for a new trial, and for further proceedings.