American Fidelity & Cas. Co. v. Farmer

• Decision Date: 29 April 1948
• Docket Number: 31952.
• Citation: 48 S.E.2d 141,77 Ga.App. 192
• Court: Georgia Court of Appeals
• Parties: AMERICAN FIDELITY & CASUALTY CO., Inc., et al. v. FARMER.

48 S.E.2d 141

77 Ga.App. 192

AMERICAN FIDELITY & CASUALTY CO., Inc., et al. v. FARMER.

No. 31952.

Court of Appeals of Georgia, Division No. 1.

April 29, 1948

Rehearing Denied May 26, 1948.

Syllabus by the Court.

1. The demurrers of the defendants to the petition of the plaintiff were properly overruled.

2. The assignments of error based on the refusal of certain requests to charge, and on an excerpt from the charge, do not show harmful error requiring a new trial.

3. The evidence authorized the verdict.

4. All other assignments of error in this case are controlled by the rulings in the companion cases cited in the opinion.

Strang, Fletcher & Carriger, of Chattanooga Tenn., and Gleason & Painter, of Rossville, Ga., for plaintiffs in error.

McClure Hale & McClure, of Trenton, for defendant in error.

PARKER Judge.

This case and the cases of American Fidelity & Casualty Co Inc., et al. v. Farmer, Ga.App., 48 S.E.2d 122, and American Fidelity & Casualty Co., Inc., et al. v. Farmer, Ga.App., 48 S.E.2d 137, all arose out of the same occurrence and are companion cases. They were tried together, before the same jury and upon the same evidence and charge of the court, but separate verdicts were returned in each case. This case was an action by J. J. Farmer to recover damages for the loss of the services of his wife, Emily Farmer, because of injuries sustained by her, and for medical expenses incurred. The other suit by J. J. Farmer was for damages for injuries sustained by himself, and the action by Emily Farmer was for her own personal injuries. The three cases were briefed together in this court because the pleadings are substantially alike and largely the same questions were involved in each case. Only those assignments of error which are not controlled by the rulings in the companion cases will be considered and decided here. The plaintiff in this case recovered damages in the sum of $2,000 and the defendants excepted to the overruling of their motion for new trial. For a more complete statement of the facts of this case see the companion cases cited.

1. Defendants demurred to the petition on the ground that it did not show that the plaintiff, as the husband of Mrs. Emily Farmer, was entitled to her earnings and could sue for their loss. The demurrer is based on the act of 1943, Ga.Laws 1943, p. 316, Code, Ann.Supp. § 53-512, which provides that a husband shall not be entitled to nor receive the salary or wages of his wife except by her consent. The husband did not sue in this case for damages for the loss of any salary or wages previously earned by the wife, nor for the impairment of the wife's ability to earn wages or salary. Wages or salary only are covered by the act of 1943. A husband is still entitled to the domestic services of his wife rendered in and about the household, in the general work of keeping and maintaining the home, and he may sue for damages for the loss of such services. This is the construction we understand was placed upon the act by the Supreme Court in Martin v. Gurley, 201 Ga. 493, 39 S.E.2d 878, reported also in 74 Ga.App. 642, 40 S.E.2d 787. The right of action for the damages claimed was in the plaintiff and the demurrers to the petition were properly overruled.

2. The only other points made in this case which are not controlled by the rulings in the companion cases relate to the Carlisle mortality table and the annuity table set out in the appendix to Volume 70 of the Georgia Reports.

One assignment of error complains of the failure of the court to give the charge suggested by Judge Lumpkin in Florida Central & P. R. Co. v. Burney, 98 Ga. 1, 26 S.E. 730, as to the use and application of the tables. It would not have been error for the court to have given this lengthy charge as requested, but it does not follow that the failure to do so was harmful to the defendants and requires a new trial. Unless the refusal to give the charge requested was both erroneous and harmful to the defendants, they cannot successfully complain. The burden is on them of showing both error and harm, and for the reasons hereinafter stated we do not think this has been done.

The defendants also requested the court to charge that in determining the damage to the plaintiff resulting from the loss of his wife's services, if any, the jury must determine such damage on the basis of the life expectancy of J. J. Farmer or his wife, whichever is shorter; and that the jury could not award damages to Mr. Farmer for any period of time either he or his wife might live after the death of the other. These requests are set out in two different assignments of error but are substantially the same. They are based on the suggestion, which was expressly not an adjudication of any question, made by Judge Bleckley in the case of Metropolitan Street Railroad Co. v. Johnson, 91 Ga. 466, 471, 18 S.E. 816. Although these requests stated a correct principle, that is, that the husband could not recover for the loss of services of the wife for any period beyond their joint lives, or after his or her death, the refusal of these requests was not necessarily harmful.

The final assignment of error is based on the charge given respecting the mortality and annuity tables as follows 'Now gentlemen, you will have out with...