Indianapolis & M. Rapid Transit Co. v. Reeder
| Decision Date | 11 December 1912 |
| Docket Number | No. 7,769.,7,769. |
| Parties | INDIANAPOLIS & M. RAPID TRANSIT CO. v. REEDER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Putnam County; John M. Rawley, Judge.
Action by John C. Reeder against the Indianapolis & Martinsville Rapid Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.Thomas T. Moore, of Greencastle, and W. H. Latta, of Indianapolis, for appellant. Silas A. Hays, of Greencastle, and George W. Brill and George C. Harvey, both of Danville, for appellee.
This is an action for damages for the death of appellee's wife, alleged to have resulted from an injury received by her in a collision when a passenger on one of appellant's cars.
This is a second appeal; a former judgment for appellee having been reversed by this court. Indianapolis, etc., Co. v. Reeder, 42 Ind. App. 520, 85 N. E. 1042.
There has been no change in the complaint since the former appeal, and, as its sufficiency is not questioned, it is enough to say that it contains the averments common to complaints based on similar causes of action, viz., averments showing the relationship of passenger and carrier between the deceased and appellant, the collision of the car on which the deceased was a passenger with another of appellant's cars, the negligence of appellant's servants in causing the collision, and the injury to the wife of appellee, caused thereby.
Inasmuch as the question of excessive damages is emphasized in appellant's brief and apparently relied on with much confidence, both as furnishing a ground for reversal and an order of remittitur, we set out the substance of the averments showing the character of the injury, its effect upon deceased, and her condition thereafter.
It is averred that as a result of the collision the deceased suffered wounds, cuts, and bruises about the head, face, back, hips, legs, and arms, and severe nervous shock; that she was strained and wrenched in the back, hip, and spine, on account of which her nervous system was permanently injured; that she was injured on August 2, 1903, and continued to suffer and require nursing and medical attention until her death on the 26th day of August, 1904; that as a result of said injuries she became sick and distressed in body and mind; “that her mind became diseased, and she became insane and violent and dangerous, *** in which condition she continued until the date of her death; *** that prior to the injury *** she was a stout, hearty, and accomplished woman, of the age of 30 years, and was a good companion, wife, mother, and housekeeper; that during their said marriage [the marriage of appellee and deceased] they had born to them one child, to wit, Hortense Reeder, who was, at the date of the injury, *** of the age of 11 years, and up to that time had been under the care, management, control, and education of plaintiff's said wife; that *** plaintiff has been deprived of the services, society, and companionship of his said wife, and has been compelled to spend, in trying to cure and heal her, a large sum of money, to wit, one thousand dollars ($1,000); that he has been compelled to nurse her, which was reasonably worth the sum of five hundred dollars ($500), and has been compelled to expend other large sums of money on account of said injuries so received, as aforesaid, and has been damaged in the sum of twenty-five thousand dollars ($25,000).”
A demurrer to the complaint was overruled, and a general denial filed. The issues thus joined were submitted to a jury, which returned a verdict for appellee in the sum of $4,200.
Appellant filed a motion for new trial, which was overruled, with exceptions in its favor. The alleged error in this ruling is the only question presented by the appeal. It is first insisted that this motion should have been sustained, on the ground that the damages assessed by the jury were excessive.
The Supreme Court and this court have frequently declared that a judgment will not be reversed on such ground, except in cases where the amount assessed by the jury is so large that it induces the court to believe that the jury must have acted from prejudice, partiality, or corruption. L. & N. R. R. Co. v. Kemper, 153 Ind. 618, 53 N. E. 931; C. & E. R. R. Co. v. Vester, 47 Ind. App. 141, 93 N. E. 1039, and authorities there cited; Southern Railway Co. v. Crone, 99 N. E. 762.
[1] But in this connection it is claimed by appellant that this court, on the former appeal, reversed the case on account of the damages being excessive, and that such decision is now the law of the case. That decision is the law of the case, in so far as it applies to the facts now pleaded or the evidence introduced thereunder. Indiana, etc., Traction Co. v. Pring, 96 N. E. 180, at page 184;City of Logansport v. Humphrey, 106 Ind. 146, 6 N. E. 337;Keller v. Gaskill, 20 Ind. App. 502, 50 N. E. 363;Brunson v. Henry et al., 152 Ind. 310, 52 N. E. 407;Ft. Wayne, etc., Co. v. Parsell, 94 N. E. 770.
It should be stated in this connection that appellant is insisting that there has been little or no change in the evidence, and that upon this question it remains substantially the same as on the former appeal. Appellant is in error in its statement that the case was before reversed on the ground that the damage was excessive. The case was reversed on account of an error in giving an instruction on the measure of damages, which authorized the jury “to allow the appellee, as damages, the money value of the wife's services in taking care of the child, and also what expense the husband might incur in employing others to take the mother's place in the care of the child,” thus authorizing the jury to make a double assessment of damages for the same service. In discussing this instruction and the error that probably resulted therefrom, this court did, in that case, discuss the damages assessed, and stated that, in view of the evidence, they appeared to the court excessive and unreasonable.
Appellant is also in error in assuming that the evidence remains substantially the same as on the former appeal. The statement of the court on the former appeal, indicated above, was based on a summary of the evidence there made by the court, which showed, in effect, that appellee, in the former trial, had failed to prove any actual outlay for expenses incurred except $60; that he had failed to prove the value of the services of the nurses, or charges made by or the amounts paid to physicians. After making this summary of the evidence, the court then stated that “at least three-fourths of the $5,000 damages assessed by the jury in favor of appellee must have been based exclusively upon the loss of the society and companionship of his wife.” Under such evidence this court very properly concluded that the damages appeared to be excessive, and that therefore harm had resulted from the erroneous instruction given, and reversed the cause on account of error in giving such instruction.
[2] The record now discloses that there was evidence introduced before the jury (and appellant's brief sets it out) to the effect that appellee paid for the funeral expenses of his wife, approximately $300; that “in the 13 months she lived” after receiving her injury he paid out about $1,000 for doctor bills, medicines, and expenses of taking her to and from the doctors, and for nurses and assistants in caring for her and waiting on her. There was evidence, also, that the services of appellee and his family in taking care of and waiting on deceased in her last sickness was of the value of $50 a week. Of the $300 funeral expenses mentioned, it was admitted that the undertaker, if present, would testify that his bill, including only certain enumerated items, was $185.25. So that the case, as now presented, has some evidence tending to show an actual outlay for expenses of $1,300 and, in addition thereto, the value of the services of appellee and his family for about 56 weeks, at $50 a week, or near $2,800.
It is true that the cross-examination of appellee tended to show that the $2,800 item above probably included some items that were not a proper charge in a case of this character, and that the charge of $50 a week in the early part of the sickness of the deceased was excessive; but, conceding this to be true, the fact remains that there was some evidence before the jury tending, at least, to show that appellee's actual pecuniary loss on account of the two items, expenses, and service of himself and family in nursing and caring for the deceased was near $4,100.
The record in the case further discloses that there was evidence introduced before the jury showing, or tending to show, that the deceased, when she was injured, was a strong, healthy woman, 30 years of age, of fair education and some talent for music, both vocal and instrumental; that she used this talent in her home to add to its attractions, and that her efforts in this regard were a source of comfort, enjoyment, and happiness to appellee; that she was of a cheerful and happy disposition in her home, and took great interest therein and in her family, which consisted of appellee and their daughter, 11 years of age when the mother was injured; that she did all her household work, including washing and ironing, and in addition “did lots of fancy work” with the needle, “made the little girl's clothes and much of her own”; that she took an interest in her yard and flowers, and in all the surroundings of the home, and did what she could to make it attractive and inviting. Such was the situation of appellee in his home at the time of and before his wife's injury, or, at least, the jury had the right to infer from the evidence in the case that such was the situation. What was the condition after the injury?
The evidence now in the record shows, or tends to show, that after the injury there was a complete change in appellee's home environment. The wife was all the time under...
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