Brown v. Finger

• Decision Date: 02 April 1962
• Docket Number: No. 17892,17892
• Citation: 124 S.E.2d 781,240 S.C. 102
• Parties: D. Fred BROWN, Respondent, v. Elliott O. FINGER, Appellant.
• Court: South Carolina Supreme Court

Page 781

124 S.E.2d 781

240 S.C. 102

D. Fred BROWN, Respondent, v. Elliott O. FINGER, Appellant.

No. 17892.

Supreme Court of South Carolina.

April 2, 1962.

Norton & Norton, Marion, McEachin, Townsend & Zeigler, Florence, Louis M. Shimel, Charleston, for appellant.

Gasque, Seals & Gasque, Marion, George W. Keels, Florence, for respondent.

LEWIS, Justice.

The plaintiff instituted this action on December 13, 1954, with an amended complaint being served on April 30, 1956, against the defendant, a physician, to recover damages for loss of consortium of of his wife and medical expenses incurred by him, as a result of the alleged conduct of the defendant in having wilfully and maliciously administered and made available narcotics to plaintiff's wife for such period of time as to reduce her to a dope addict, ruin her morals and to reduce her mentally and physically to a degenerate person, effectively destroying plaintiff's marriage. The defendant in his answer admitted that the wife of plaintiff became addicted to the use of narcotic drugs and alcohol, but denied any responsibility therefor, and alleged that any damages suffered by the plaintiff were due to plaintiff's own negligence, and the negligence of his wife in acquiring her addiction to narcotic drugs. The answer further alleged that, if any of the alleged delicts set forth in the complaint were true, the same originated and culminated more than six years prior to the institution of this action and are barred by the statute of limitations.

The case was tried in November, 1956 before the late and esteemed Reisdent Judge of the Third Judicial Circuit Honorable J. Frank Eatmon, and a jury, resulting in a verdict for the plaintiff for $55,170.00, actual damages. Timely motions by the defendant for judgment in his favor notwithstanding the verdict, and in the alternative for a new trial, were made and by consent marked 'heard'. Before the motions could be disposed of by Judge Eatmon, he became ill and subsequently died. The motions were then argued before Honorable James Hugh McFaddin, the successor of Judge Eatmon, who overruled all grounds of the motions except one, relating to the alleged error of the trial judge in permitting the jury to consider, as an element of damage, loss of earnings of the wife. Judge McFaddin held that loss of earnings of the wife was improperly submitted to the jury as an element of damage in this action by the husband for loss of consortium. He further held, however, that such error could be cured by requiring the plaintiff to remit upon the record the maximum amount of such element of damage, which he found to be the sum of $14,400.00. An order was accordingly passed granting a new trial unless the plaintiff remitted upon the record the foregoing amount, which remission the plaintiff duly made. From this order the defendant has appealed.

The first and most serious question to be decided is that relating to the failure of the lower Court to grant a new trial generally after concluding that loss of earnings by the wife was improperly allowed as an element of damage in the case. The testimony shows that the wife was a nurse and received separate earnings from her employment as such. As heretofore stated, the trial judge permitted, over the objection of the defendant, testimony as to the loss of earnings by the wife and consideration by the jury of such as an element of damage for which the husband could recover in his action for loss of consortium. This ruling of the trial judge was apparently based upon testimony that the earnings of the wife were deposited in a joint bank account with the plaintiff and that he had access to and the use of her money. On motion for a new trial, however, the lower Court correctly held that loss of earnings of the wife was improperly allowed as an element of damage recoverable in a suit by the husband for loss of consortium.

In the case of Cook v. Atlantic Coast Line R. Co. et al., 196 S.C. 230, 13 S.E.2d 1, 7, 133 A.L.R. 1144, it was settled in this State that, despite the adoption of the so-called Married Women's Acts, the husband's common law right to the wife's services, aid, comfort, society and companionship, comprehended by the term consortium, remain, together with the attendant right to sue therefor in the event of their loss through personal injury to her by a third party. It was there held that in such an action 'the husband is entitled to recover the value of those services of his wife which he has lost, including the loss of his wife's society and companionship in the home--all of which are comprehended by the term 'consortium.' He is also entitled to recover for any expenses which he has incurred for her care and treatment because of illness or bodily harm suffered by her, and for any medical expenses which he has incurred.'

The rule that a husband may recover for the loss of consortium of his wife is based upon the principle that his right thereto, which existed at common law, has not been abridged by the so-called Married Women's Acts. However, the common law rule that a husband is entitled to the separate earnings of his wife, has been specifically changed by statute in this State. See: Bryant v. Smith, 187 S.C. 453, 198 S.E. 20. Section 20-204 of the 1952 Code of Laws provides that 'all the earnings and income of a married woman shall be her own separate estate and shall be governed by the same provisions of law as apply to her other separate estate.' And she may sue and be sued in regard to her separate estate. Section 10-216, 1952 Code of Laws.

By virtue of the foregoing statutes the right is conferred upon the wife to bring an action for the recovery of loss of earnings resulting from personal injury to her. And 'where a married woman's separate earnings belong to her by force of a statute specifically providing that a married woman shall be entitled to her own earnings, the husband cannot recover for loss of such earnings.' 27 Am.Jur. 104, Section 504.

The lower Court, recognizing that loss of earnings of the wife from her separate employment was improperly considered as an element of damage in this case, found that the total amount of such earnings which could have been allowed by the jury, in any event, did not exceed the sum of $14,400.00, and reduced the verdict by that amount, holding that any error committed in submitting such item as an element of damage was cured by so reducing the verdict. It is the contention of the defendant that it was impossible for the Circuit Judge to determine with exactness the maximum amount which the jury included in its verdict for loss of earnings of the wife, because the jury was permitted to award loss of future earnings. The plaintiff contends on the other hand that loss of future earnings was not submitted to the jury as an element of damage and, therefore, could not have been included in the jury's verdict. It is plaintiff's position, sustained by the lower Court, that the sum of $14,400.00 is the maximum amount which could have been awarded for such item.

Of course, where the verdict of the jury is deemed excessive, the trial court has the power in proper cases to grant a new trial unconditionally, or order a new trial nisi, requiring the plaintiff at his option to remit a certain portion of the verdict or submit to a new trial. Anderson v. Aetna Casualty & Surety Co., 175 S.C. 254, 178 S.E. 819. Such is not the question here.

It is equally well settled that where the jury is permitted to consider an improper element of damage in arriving at its verdict, and the element of damage erroneously allowed can be computed and segregated, a new trial may be granted unless there is a remission of such amount. This is true because under such circumstances the record permits the amount of the element of damage erroneously allowed to be accurately calculated and segregated, and a remission of such portion of the verdict as could have been affected by the erroneous rulings of the trial judge would correct or cure the errors involved in the judgment. Tucker v. Buffalo Cotton Mills, 76 S.C. 539, 57 S.E. 626; Currie v. Davis, Etc., 130 S.C. 408, 126 S.E. 119; Johnston v. Bagger, 151 S.C. 537, 149 S.E. 241.

However, an error in the submission of an improper element of damage for consideration by the jury cannot be cured by a remission of an amount found by the trial judge to represent such erroneous item, where there is nothing in the record by which to apportion the damages that might be attributable to the error claimed as a ground for the new trial. If the extent to which the alleged error affected the amount of the verdict is incapable of calculation and segregation, a new trial must be granted unconditionally, 66 C.J.S. New Trial § 209(e), p. 526; Currie v. Davis, Etc., supra, 130 S.C. 408, 126 S.E. 119.

The testimony showed that the maximum monthly earnings of the wife as a murse was $200.00. The foregoing figure of $14,400.00 (the amount by which the verdict was reduced) was apparently computed on the basis of $200.00 per month for a period of six years preceding the trial, and the testimony of the plaintiff that his loss as a result of his wife's earnings was $14,400.00. The consideration of loss of earnings by the jury, however, was not limited to those sustained prior to the time of the trial.

While the plaintiff contends that the issue as to future loss of earnings was not submitted to the jury by the trial judge, we think the record shows otherwise. It is conceded that the jury was permitted to include in their verdict the element of loss of earnings to the wife to the time of trial. Immediately after instructing the jury as to the elements which they might consider in arriving at their verdict, included in which was the item of loss of such earnings, the trial judge instructed the jury, without restriction, that, in the event they found for the plaintiff, their verdict 'should also include such future or...