Birmingham Southern Ry. Co. v. Lintner

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

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...