Galtney v. Wood, 26780

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtMCGOWEN, J.
Citation149 Miss. 56,115 So. 117
PartiesGALTNEY et al. v. WOOD. [*]
Decision Date02 January 1928
Docket Number26780

115 So. 117

149 Miss. 56

GALTNEY et al.
WOOD. [*]

No. 26780

Supreme Court of Mississippi

January 2, 1928

Division A

1. DAMAGES. Five thousand dollars for serious and possibly permanent personal injuries in automobile collision held not excessive.

Verdict for five thousand dollars for various personal injuries from an automobile collision, broken arm, fractured ribs, injured hip, and general bruising of body with resultant pain and suffering, and the physician unable to say six months after the accident whether injury is permanent, held not subject to be disturbed as grossly excessive.

2. DAMAGES. Submission of punitive damages held authorized by evidence of defendant's automobile approaching street intersection at speed of forty miles per hour.

Evidence in action for injury from collision of automobiles at intersection of streets, that defendant when approaching the intersection was driving at a speed of forty miles per hour, held to warrant submission of the matter of punitive damages.

3. APPEAL AND ERROR. General objection to answer held insufficient to allow review on ground of incompetency of unresponsive part of answer.

Where in personal injury case, after the court had ruled that it was incompetent to show that defendant carried insurance, and objection to question to plaintiff's husband, "Did he (defendant) make any statement about making out your account and giving it to him?" that that was an offer to compromise, was overruled, said witness answered that defendant told him to go ahead and take care of plaintiff and present the bill to the insurance company, mere general motion to exclude the answer was insufficient objection to allow review to the extent of the irresponsive and incompetent part of the answer of the denial of the motion.

4. HUSBAND AND WIFE. It is duty of husband to furnish wife necessities, notwithstanding her emancipation from disability.

Notwithstanding the emancipation of married women from the disability of coverture, the common-law rule of the duty of the husband to furnish her necessaries still obtains.

[149 Miss. 57]

5. HUSBAND AND WIFE. Wife cannot, as part of damages for personal injury, recover for necessary medical bills, unless shown to have been paid or constracted to be paid from her separate estate.

A married woman cannot, as part of her damages for personal injuries, recover for necessary bills for doctor, medicine, and hospital for which the husband is primarily liable, unless she shows that they have been paid, or contracted to be paid, out of her separate estate, and so not where she not only fails to make any showing in that respect, but prevents defendant from ascertaining which of the two, plaintiff or her husband, was bound.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Alcorn county. HON. C. P. LONG, Judge.

Action by Mrs. Eva Wood against D. G. Galtney and another. Judgment for plaintiff, and defendants appeal. Affirmed on condition of remittitur.

Case affirmed.

Conn & Conn, for appellants.

That the husband is primarily bound for the necessaries of his wife was announced by this court, in Dunbar v. Meyer & Co., 43 Miss. 679, in no uncertain terms. This doctrine has been consistently followed by this court and we have not been able to find anything in our law since this case was decided that has changed or modified in any way the doctrine therein announced. This court declared in the case of CanDiver v. Buckley, 1 So. 633, that the removal of the disabilities of coverture did not modify or change this rule. That the husband is liable for the reasonable necessities of the wife, including necessary medical attention, is the rule wherever the common law is in force, except where modified by statute. See [149 Miss. 58] 30 C. J. 516 et seq., and cases cited in the notes; Bushnell v. Bushnell, 44 A. L. R. 785.

Deliberately and over the objection of defendants, with the full sanction of the court, it was shown to the jury that the defendant carried insurance against such accidents, without its having any bearing whatever upon any issue in the case, then before the court. Was this harmful error? See Herrin, Lambert Co. v. John Patrick Daly, 80 Miss. 340; Yazoo City v. Loggin, 145 Miss. 793, 110 So. 833; Wilkins v. Schwartz, 132 S.E. 887; Sawyer v. J. M. Arnold Shoe Co., 90 Me. 369, 38 A. 333; Ross v. Willamette Valley Transfer Co., 248 P. 1088; Wells v. Morrison, 256 P. 641; Ronan v. J. G. Turnbull Co., 131 A. 788; Arizona Cotton Oil Co. v. Thompson, 245 P. 673.

We come next to the matter of punitive damages. Was this a case warranting the submission of the question to the jury? If so, was the matter properly presented in the instruction for the plaintiff? See Storm v. Green, 51 Miss. 103; Biloxi City R. Co. v. Maloney, 74 Miss. 738; Vicksburg Railroad Power & Mfg. Co. v. Martlett, 78 Miss. 872; Illinois Central R. R. Co. v. Dodds, 53 So. 409; Yazoo & M. V. R. R. Co. v. Hardie, 55 So. 967; Godfrey v. Meridian Light & Railway Co., 101 Miss. 565. These are the principal cases, as we believe, in this state, dealing with the question of when punitive damages are proper to be inflicted, and when not. It would serve no useful purpose to review the facts in these cases, as it would throw no light on the case now before the court. In the case at bar there was no fraud, malice, oppression, wilful or intentional wrong, or insult. This leaves only gross negligence in the list, so gross as to be equivalent to wilful wrong. Was there such negligence in this case? It is conceded that Henderson was driving at a rate of speed, at the time he first sighted the Wood's car, in excess of that allowed by law for incorporated towns. But that, of itself, does not warrant the infliction of punitive damages. The case is not made out by merely showing [149 Miss. 59] the unlawful rate of speed; but causal connection must be shown between the unlawful speed and the injury sustained. 77 Miss. 511. This doctrine was announced by this court in a railroad case, although the statute made railroads responsible for all injury and damage inflicted while exceeding the speed limit. No such law applies to motor vehicles in the streets. Granted, that causal connection was established between the rate of speed in the case at bar and the injury sustained by appellee, it does not follow that appellants are subject to punitive damages. Railway Co. v. Free, 95 Miss. 730; Stevens v. Railroad Co., 81 Miss. 195; Ulmer v. Pistole, 115 Miss. 485. There was not present any negligence in this case even approximating wilful or wanton negligence, and the court should not have submitted the question of punitive damages to the jury in any form.

W. C. Sweat, for appellee.

It is true that, under the common law, the husband is liable for the necessaries of life for his wife; and it is also true that, under the statutes emancipating married women and permitting them to own and control their own property, to enter into contracts, to sue and be sued, and to permit husband and wife to sue each other, this does not relieve the husband from the obligation of providing for his wife the necessary means of support; but that principle of law does not prevent the wife from recovering the reasonable expenses growing out of the injuries inflicted upon her by the defendants in this cause. Memphis & C. R. R. Co. v. Whitfield, 44 Miss. 446; Hollingshead v. Y. & M. V. R. R. Co., 100 Miss. 464, 55 So 40.

The authorities from this court, quoted from by appellee's counsel, are not at all in point. They lay down the general rule that the husband is liable for the wife's necessities, which is not denied by us, but he has cited no cases from this court, holding that married women may not recover for the necessary medical expenses and doctor's [149 Miss. 60] bills, on account of injuries inflicted upon her. I find only one case which was decided by this court in which the question raised by the appellant in this case was presented to the court for decision, and that is Thomas v. Weeks, 115 Miss. 603, 76 So. 558, which see.

The appellant is not in a position to raise this question. There was no plea to the effect that the plaintiff was not entitled to recover for these items by reason of the fact that her husband was liable therefor, and no notice under the general issue to this effect. R. R. Co. v. Grant, 86 Miss. 565; Title v. Bonner, 53 Miss. 578. See further: Krisinger v. City of Creston, 119 N.W. 526; Schulte v. Holliday (Mich.), 19 N.W. 752; Adams Express Co. v. Aldridge (Col.), 77 P. 6.

It will be seen from the testimony that the statement that Mr. Galtney was insured was disclosed by the witness as a mere incident, and that it was not the object of the question propounded to bring out the fact that Galtney carried insurance, but as tending to show Galtney's admission of liability, which was clearly competent.

The first answer given by witness in which he stated that Mr. Galtney carried insurance was objected to by counsel without stating any ground of objection whatever. The court stated that he did not think that was competent, and if counsel had moved to have excluded this evidence, the court would, no doubt, have excluded it. Counsel for defendant made no such request; and since counsel made no request to the court that this evidence be excluded, and made no request that the jury be instructed not to consider it, counsel is certainly now in no position to complain of this answer of the witness.

Appellant cites two cases from this court, Herrin, Lambert & Co. v. Daley, 80 Miss. 340, and Yazoo City v. Loggins, 119 So. 833. Neither bears out his contention here. See, also, Harris v. P. Koenig Coal Co. (Mich.), 194 N.W. 511; Greenwold v. Faber (Mich.), 207 N.W. 911; Gibbs v. Barton, and McDavid v. Barton (N. J.), 130 A. 439; Fitzgerald v. DeMott (N. J.), 128 A. 545; Jones v. Sinsheimer (Ore.), 214 P. 375; Edwards v. Lamber and Wife (Wash.),...

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