Hughey v. Ausborn

• Decision Date: 26 May 1967
• Docket Number: No. 18656,18656
• Citation: 154 S.E.2d 839,249 S.C. 470
• Parties: , 25 A.L.R.3d 1406 Norman V. HUGHEY, Jr., Respondent, v. Melvin H. AUSBORN, Appellant.
• Court: South Carolina Supreme Court

Page 839

154 S.E.2d 839

249 S.C. 470, 25 A.L.R.3d 1406

Norman V. HUGHEY, Jr., Respondent, v.Melvin H. AUSBORN, Appellant.

No. 18656.

Supreme Court of South Carolina.

May 26, 1967.

Love , Thornton, Arnold & Thomason, Greenville, for appellant.

Abrams, Bowen & Townes, Greenville, for respondent.

MOSS, Chief Justice.

Norman V. Hughey, Jr., the respondent herein, instituted this action against Melvin H. Ausborn, the appellant herein, to recover actual and punitive damages for medical expenses incurred by him as the father of Mary Carole Hughey, and as the husband of Edith L. Hughey, and for the loss of consortium of his wife, resulting from an automobile accident that occurred in the City of Greenville, South Carolina, on March 10, 1965, by reason of the negligent, reckless and willful acts of the appellant.The answer of the appellant was a general denial.

Mary Carole Hughey, the minor daughter of the respondent, and Edith L. Hughey, the wife of the respondent, each brought an action against the appellant and recovered actual and punitive damages for their personal injuries.The amount of the verdict so returned in each case has been paid.

The instant case came on for trial before The Honorable James H. Price, Jr., and a jury, at the May, 1966 term of the Greenville County Court.At the close of the testimony, the appellant having elected to offer no testimony, the respondent moved the court to direct a verdict in his favor for actual and punitive damages.The appellant moved that a verdict be directed in his favor as to punitive damages.The court granted the motion of the respondent and directed the jury to find both actual and punitive damages against the appellant, leaving the amount thereof to be ascertained by the jury.The jury returned a verdict in favor of the respondent for $3,000.00 actual damages and $4,000.00 punitive damages.The appellant made a timely motion for judgment Non obstante veredicto as to punitive damages and, in the alternative, for a new trial and for a new trial Nisi.This motion was denied and this appeal followed.

Assuming that the appellant was guilty of negligent, willful and reckless conduct resulting in injury to the minor daughter and wife of the respondent, the first question for determination is whether the respondent is entitled to punitive damages in an action to recover for medical expenses incurred for his daughter and wife and for the loss of consortium growing out of the injury to his wife.

When a minor receives personal injuries proximately caused by the actionable negligence, recklessness and willfulness of another, a cause of action arises in favor of the injured minor and such minor can maintain a suit to recover the resulting damages through a guardian Ad litem.However, in such an action the amount paid for medical care and treatment by the parent is not an element of damage and the parent has a cause of action for the recovery of the medical expenses which he has incurred for the care and treatment of such minor.Tucker v. Buffalo Cotton Mills, 76 S.C. 539, 57 S.E. 626;Bridges v. Joanna Cotton Mill, 214 S.C. 319, 52 S.E.2d 406.

When a wife receives personal injuries proximately caused by the actionable negligence, recklessness and willfulness of another, a cause of action arises in her favor for her personal injuries.However, in such an action the amount paid for medical care and treatment by her husband is not an element of damage and the husband has a cause of action to recover for any expenses which he has incurred for her care and treatment, as a result of personal injuries caused and occasioned by the negligence of a third party; and a cause of action for the recovery of consequential damages for the loss of his wife's society, companionship and services, all of which are comprehended by the term 'consortium'.Cook v. Atlantic Coast Line Ry. Co., 196 S.C. 230, 13 S.E.2d 1, 133 A.L.R. 1144;Vernon v. Atlantic Coast Line Ry. Co., 218 S.C. 402, 63 S.E.2d 53;Brown v. Finger, 240 S.C. 102, 124 S.E.2d 781;Sossamon v. Nationwide Mut. Ins. Co., 243 S.C. 552, 135 S.E.2d 87.A father and husband is bound to furnish the necessities of life to his minor child and wife and among such are necessary medical service and hospitalization.The father's and husband's right to recover from a tort-feasor for such items of expense is based on his obligation to furnish them.

The damages to which the father of a minor child and a husband is entitled for medical expense which he has incurred for their care and treatment are compensatory.The right of action for such damages, as is heretofore stated, is based solely on his obligation to furnish them.While there is contrary authority, the general rule is that if a minor sustains personal injuries under circumstances justifying the award of exemplary or punitive damages against the wrongdoer, the right of recovery thereof is in the child, the party directly injured, and there can be no recovery of punitive damages by the father in his own right.The father's recovery in such case is confined to his pecuniary loss.37 A.L.R., at page 50.The cases there cited support the foregoing rule.In the case of Bube v. Birmingham R. Light & P. Co., 140 Ala. 276, 37 So. 285, it was said to be a well recognized principle of common law that the right of action in the father for injuries to a minor child 'is based upon the idea of loss of service of the minor to the father, and the damages are compensatory, including, of course, nursing, medical expenses, and the like,' and that punitive damages are not recoverable in such an action unless they are given by a statute.In 67 C.J.S.Parent and Child§ 55, at page 758, it is said 'A parent is entitled to recover damages measured by the pecuniary loss sustained, and his recovery is restricted to such loss, and, hence, exemplary damages may not be recovered in the absence of a statute authorizing them.'In 22 Am.Jur.2d, Damages, para. 254, at page 347, it is stated that exemplary damages are allowed only to the immediate person receiving the injury, either in a suit prosecuted by himself or by someone for his use.Hence, such damages cannot be recovered by a parent in his own right for injuries to a minor child unless a statute so provides.We have no such statute in this state.

A cause of action for the personal injuries to a married woman, and the proceeds of recovery therefor, are her separate property for which she may sue in her own name.Section 20-204andSection 10--216 of the 1961 Code of Laws.However, these sections have not abridged the common law right of her husband to the companionship, aid, society and services of his wife, which is comprehended by the term 'consortium', and his attendant right to sue therefor in the event of their loss through personal injury to her.Cook v. Atlantic Coast Line R. Co., 196 S.C. 230, 13 S.E.2d 1, 133 A.L.R. 1144.

The case of Golden v. R. L. Green Paper Co., 44 R.I. 231, 116 A. 579, was one brought by a husband to recover damages for loss of consortium in consequence of personal injuries alleged to have been received by his wife through the negligence of the defendant's servant.In this case the following rule was stated:

'When a wife has been injured by the negligent act of another, ther has not been an intentional wrong committed against the husband.There cannot be said to be a direct injury to other than the practical and material elements of his right of consortium.A husband has a right of action, but his recovery must be of compensation, and is not given by way of punishment.In reference to the measure of damages in such action, courts have frequently said that the husband can recover for the injury to his consortium, but within that term is the husband's right to the services of his wife, and it is solely for that, and for his expenses, that recovery has generally been permitted. * * *'

The case of People's Home Telephone Company v. Cockrum, 182 Ala. 547, 62 So. 86, was one in which a husband brought suit for damages for injuries to his wife.The court charged, in effect, that the husband was entitled to recover punitive damages.The Supreme Court of Alabama, in reversing the lower court, held under the married woman's law that a wife was required to sue alone for injuries to her person and the damages recovered were her separate property but such did not deprive the husband of the right to sue for the damages he sustained as the proximate result of the injury to his wife's persons, negligently inflicted by another; but he could not recover exemplary damages which are alone recoverable by her.The court said 'His right is solely compensatory, and he may not sue for the 'injury itself,".Thus the husband 'cannot recover exemplary or punitive damages, but must be confined in his recovery to compensatory damages as a proximate result of the injuries.The wife only can recover exemplary or punitive damages, which the law permits as punishment, and not as compensation.'The court further said 'While the relationship is not identical, the right of the husband to recover damages for injuries to the wife is analogous with the right of the parent to recover for injuries to a child.In such instance, the recovery is intended as compensation and not punishment.'

The question of whether a husband, suing for the loss of consortium and for the recovery of medical expenses which he incurred for the care and treatment of his wife, can recover punitive damages has not been decided by this court.The only case where the issue has been squarely presented is the Ababama case heretofore cited and the decision there is logical and a realistic statement of the rule as we conceive it to be and we apply such to the factual situation here involved.It follows that the trial judge was in error in refusing the motion of the appellant for a directed verdict in his favor as to punitive damages.

The appellant insists that the trial judge...