Birmingham Southern Ry. Co. v. Lintner

• Decision Date: 02 December 1904
• Citation: 38 So. 363,141 Ala. 420
• Parties: BIRMINGHAM SOUTHERN RY. CO. v. LINTNER. a1
• Court: Alabama Supreme Court

38 So. 363

141 Ala. 420

BIRMINGHAM SOUTHERN RY. CO. v. LINTNER. a1

Supreme Court of Alabama

December 2, 1904

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by William Lintner against the Birmingham Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

It is averred in each of the counts of the complaint that the plaintiff's wife, Clara Lintner, was in a buggy drawn by the horse, driving along a street in or near the town of Ensley, and as she drove across the track of the defendant which crossed said street, the said engine ran upon or against said horse and vehicle, and threw the plaintiff's wife from the vehicle, whereby she was severely injured in her person and was made sick. It was then averred in each of the counts of the complaint that, as a proximate consequence of such injuries and sickness of the plaintiff's wife "he lost the services and society of his said wife for a long time, and will likely continue to lose her said services and society for a long time, and he was put to great trouble inconvenience, and expense for medicine, medical attention care, and nursing in or about his efforts to heal and cure the said wife's said wounds, injuries, and sickness." It is further averred in each of said counts that said vehicle was broken or otherwise injured, and the harness by which the horse was attached to said vehicle was greatly injured and damaged, and the horse was injured, for all of which damages the plaintiff claims $5,000.

The defendant moved the court to strike out of each count of the complaint the portions thereof which claimed damages on account of the loss of the services and society of the wife of the plaintiff, upon the ground that the plaintiff is not entitled to the services of his wife under the laws of the state of Alabama, and that the complaint shows he has not lost the society of his wife, because she was living at the time of the complaint. The defendant moved to strike from each count of the complaint that portion of each count which claimed damages on account of the trouble, inconvenience, and expense incurred by the plaintiff for medicine, medical attention, and nursing of his wife, upon the ground that his wife was legally liable, by the laws of the state, for such expenses. Each of these motions was overruled by the court and to each of these rulings the defendant duly excepted. The defendant then demurred to each of the counts of the complaint upon the ground that the plaintiff's wife was at the time of the injury complained of a married woman, and entitled, under the laws of Alabama, to sue for and recover all damages which may have been sustained for the personal injuries complained of in said count, and because the plaintiff's wife was liable for the expense for medical attention, care, and nursing, and because the plaintiff has no claim under the laws of Alabama for the services of his wife, and no legal claim upon his wife for such services, and because it was shown by the averments of the complaint that the plaintiff had not lost the comfort, companionship, or services of his wife, in that at the time of filing said complaint she was living. The defendant also demurred to each of the counts of the complaint upon the ground that in each of said counts there was a misjoinder of action, in that in each of said counts the plaintiff sought to recover for the loss of the services of his wife, and also for damages for the loss, destruction, and injury of personal property. The court overruled each of these demurrers to the complaint, and to each of these rulings the defendant duly excepted. The defendant then pleaded the general issue, and by special plea set up the contributory negligence on the part of the plaintiff's wife, in that she negligently drove the horse and vehicle upon the track of the defendant, in front of a moving locomotive.

Plaintiff was the husband of Clara Lintner. On October 31, 1901, she had driven in a buggy to the place where her husband worked to carry him to his work at the steel plant. She then started home, and in crossing the railroad of the appellant the horse and buggy were run into by an engine of the appellant on a public road crossing. The buggy was broken up, and the horse slightly injured. The horse and buggy were the property of the appellee. Clara Lintner, wife of the appellee, was also injured. The extent of her injury was a disputed question. She claimed serious injury. This, however, was contradicted by the attending physician. She was in bed for a while--about one week--and testified that she had not entirely recovered at the time of the trial. The evidence of appellee tended to show that, before Clara Lintner started on the track of the appellant, she stopped and looked and listened. The evidence of appellant tended to show that she did not stop and look and listen, but that she drove straight on across the track at a fast speed, without pausing at all. During the examination of the wife as a witness, and after she had testified to having sustained serious injuries, which prevented her from attending to her household duties, and made it necessary for her husband to employ another person to do the work about the house, she was asked the following question: "Are you still suffering from the injury?" The defendant objected to this question upon the ground that, if the plaintiff could recover for the services of his wife at all, it was only up to the date of the filing of the complaint. The court overruled the objection, and the defendant duly excepted. Upon the cross-examination of Peter F. Goss, a witness for the plaintiff, he was asked by the defendant if he had not sued the Louisville & Nashville Railroad Company on account of an accident. The court sustained the plaintiff's objection to this question, and to this ruling the defendant duly excepted. Thereupon the defendant asked the witness the following question: "Mr. Harsh [the attorney for plaintiff in the pending suit] was your attorney in that case, was he not?" The plaintiff objected to this question. The court sustained the objection, and the defendant duly excepted.

The defendant requested the court, among others, to give to the jury the following written charges, and separately excepted to the court's refusal to give each of said charges as asked:

"(c) The court charges the jury that if they believe from the evidence that Mrs. Clara Lintner could hear ordinarily well, and that she drove up to the crossing, and stopped and looked and listened before she started across, and did not hear the engine coming, and that this contributed proximately to the accident, then they must find a verdict for the defendant."

"(13) The court charges the jury that, even if they should find a verdict for plaintiff for and on account of the loss of services of his wife, they cannot allow anything for loss of such service subsequent to the filing of the complaint in this suit."

"(17) The court charges the jury that plaintiff cannot recover in this action for any losses of the services of his wife which may occur in the

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