Graham v. Central of Georgia Ry. Co.

• Decision Date: 17 May 1928
• Docket Number: 6 Div. 114
• Citation: 117 So. 286,217 Ala. 658
• Parties: GRAHAM v. CENTRAL OF GEORGIA RY. CO.
• Court: Alabama Supreme Court

117 So. 286

217 Ala. 658

GRAHAM v. CENTRAL OF GEORGIA RY. CO.

6 Div. 114

Supreme Court of Alabama

May 17, 1928

Rehearing Granted June 7, 1928

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages by H.T. Graham against the Central of Georgia Railway Company. Plaintiff takes a nonsuit and appeals from adverse rulings on pleading. Reversed and remanded on rehearing.

That injury to wife caused death is not ground of action at common law to husband, whose recovery is limited to loss between injury and death.

The amended complaint consisted of counts X, Y, Z, and A; the material difference being in the elements of damage claimed. Count X is as follows:

"Plaintiff claims of the defendant, Central of Georgia Railway Company, a corporation the sum of $3,000 as damages for that, on, to wit, April 18, 1926, defendant was engaged in the business of operating a railroad from Columbus, Ga to Birmingham, Ala., and in and through the town of Irondale in Jefferson county, Ala., having and using in connection therewith a railroad track and a railroad train. That on, to wit, said date, while plaintiff's wife, Mrs. Agnes V Graham, was riding as a passenger in an automobile, over which she had no charge, operation, or control, on a public highway known as Twentieth street in the town of Irondale Jefferson county, Ala., and while the said automobile was crossing the track of said railroad at a place on said public highway which was a public crossing, defendant's railroad train on said railroad track of defendant at said place, which said train was then and there operated by defendant's servants, agents, or employees, acting within the line and scope of their employment as such, ran against the automobile in which plaintiff's said wife was riding as aforesaid, and she was thereby so injured as that she died, her death occurring on, to wit, April 26, 1926, the death of plaintiff's said wife being the proximate result of her injuries received as aforesaid, and the plaintiff was injured and damaged as the result of the injuries to and the death of his wife as follows:

"Plaintiff was caused much expense for hospital bills and accommodations for his said wife for employing nurses and the expenses incident thereto, in obtaining medicines and medical aid and surgical attention for his said wife during her lifetime after she was so injured and before her death, and was caused expense in the employment of doctors and physicians and surgeons in and about his efforts to heal and cure his said wife's injuries, and plaintiff was caused to lose time from his customary work and labor and duties, and was caused much inconvenience in attending and nursing his said wife in an effort to alleviate her condition and lost the services of his wife and her companionship or consortium from the time she was injured as aforesaid until she died, to wit, eight days later, and he was also put to much expense made necessary after her death and known as funeral expenses, including a grave, and grave space, preparation of the grave to hold the casket and to receive her body, for a casket within which to put the body of his wife, for a hearse, funeral cars or automobiles, for embalming, and the other necessary expenses incident to conducting the funeral and interring the body of his wife.

"And plaintiff further avers that defendant's servants, agents, or employees in the operation of said railroad train, one or more of them, acting within the line and scope of his or their employment as such servant, agent, or employee, or servants, agents, or employees of the defendant in the operation of said railroad train, at the time and place as aforesaid, wantonly operated and ran said railroad train against the automobile in which plaintiff's said wife was riding as aforesaid, wantonly caused plaintiff's wife's said injuries and death, with the said resultant damages to plaintiff, and said injuries to and death of plaintiff's said wife as aforesaid, with the said resultant damages to plaintiff as stated, were proximately caused by the wanton conduct as aforesaid of defendant's said servants, agents, or employees, one or more of them, acting within the line and scope of his or their employment as such."

Count Y is in part as follows:

"For this count plaintiff adopts the words of count X from its beginning down to and including the words, 'Ran against the automobile in which plaintiff's said wife was riding as aforesaid,' and to this count adds thereto the following: And plaintiff's wife was thereby so injured that as a proximate result of said injuries she died on April 26, 1926, medical and surgical and hospital attention having been accorded her because of the injuries so received between the time she was injured and the time of her death as aforesaid; her said death being the proximate result of her said injuries; and the plaintiff was damaged as the proximate result of the said injuries and the death of his wife, all as aforesaid, as follows:

"He was caused and put to much expense in the payment of

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