Loew v. Allen
| Decision Date | 06 October 1967 |
| Parties | Norma C. LOEW, Administratrix of the Estate of Essie P. Cundiff, Deceased, Appellant, v. James B. ALLEN, Administrator of the Estate of Flora Allen, Deceased, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
James F. Clay, Clay & Clay, Danville, for appellant.
John W. Murphy, Jr., Oliver Popplewell, Liberty, for appellee.
On February 6, 1965, Flora Allen was a passenger in an automobile driven by Essie P. Cundiff. It collided with another vehicle and both ladies were killed almost instantly. James B. Allen, as administrator of the estate of Flora Allen sued Norma C. Loew, administratrix of the estate of Essie P. Cundiff. He claimed that the negligence of Mrs. Cundiff caused the death of Mrs. Allen. The jury awarded $10,913.50. From a judgment for that amount the defendant appeals. We affirm.
The opening paragraph of the complaint was couched in the following language:
'Comes now the plaintiff, James B. Allen, as Administrator of the estate of Flora Allen, and for this his cause of action herein against the defendant, Norma C. Loew, as Administratrix of the estate of Essie P. Cundiff, deceased and says and alleges as follows, to-wit:'
Allegations were made regarding residence, appointment of the two personal representatives, heirs-at-laws, accident and negligence of the driver. The pleading then alleged:
'That as a result of the death of the said Flora Allen, the surviving husband and daughter and each of them have been and are now deprived of the comfort, protection and society of the said Flora Allen, all to their damage in the amount of $20,000.00, * * *
'* * * that damages resulted to the estate of the said Flora Allen in the amount of $913.50 for funeral expenses for the burial of the said Flora Allen * * *'
The demands of the plaintiff were for those amounts. The administrator made no other claim and the surviving husband and daughter were not made parties.
The case was consolidated with a suit brought against Loew, administratrix by Melvin Johnson, the owner of the car with which the Cundiff automobile collided. We will relate only those occurrences which pertain to and bear upon the issues now before us.
While testifying James B. Allen was asked the age of his wife. An objection to this question was overruled. Later he was asked 'Since that time (accident) have you all been living by yourselves?' An objection was sustained. No evidence was introduced with respect to Mrs. Allen's condition of health or her capabilities. The proof showed only that Mr. and Mrs. Allen had been living together and that no one else resided with them.
The court instructed the jury as to the duties of the parties, and subject to its conclusion of violation of those duties, authorized the jury to 'find damages for James B. Allen as administrator of the estate of Flora Allen * * * such a sum in damages as you believe from the evidence will fairly and reasonably compensate her estate for the reasonable funeral expense of Flora Allen, not to exceed the sum of $913.50 and such further sum as you may believe from the evidence will fairly and reasonably compensate her husband, James B. Allen, for the loss of comfort, protection and society of his wife, not to exceed the sum of $20,000.00, the amount claimed, * * *'.
Together with the instructions, the court furnished to the jury a series of questions submitting all theories of the case. These were arranged so that if the jury found in favor of the claims being asserted by reason of the death of Flora Allen, it was directed to answer Questions No. 5a and No. 5b. These two questions and the answers were:
'Question No. 5a: What sum of money do you find from the evidence will fairly and reasonably compensate James B. Allen for the loss of the comfort, protection and society of his wife, Flora Allen?
'Question No. 5b: What sum of money do you find from the evidence will fairly compensate James B. Allen for the funeral expense for Flora Allen, deceased?
Answer $913.50'
The record reveals that no objection was made to the instructions or the questions. The record does not indicate whether the parties tendered instructions but the brief for Allen, administrator, states that Loew, administratrix, 'submitted instructions (which were accepted in toto by the court)'. This is not denied by Loew, therefore, we will assume that this occurred.
When the jury first returned, the court found an inconsistency in the verdicts and kept the jury assembled. Counsel for Allen moved that the jury be required to correct the verdict and special finding under Question No. 5a and one other. The attorney for appellant, Loew, objected on the ground that it would be error for the court to direct 'the jury to return a verdict in some amount for the loss of consortium to the plaintiff, James B. Allen, for the reason that under the complaint there is no recovery asked for the destruction of the power to earn money of the decedent which would be a right of recovery due her estate, but only a claim for loss of consortium and services of the surviving husband which is a claim for loss of consortium personally for him and not for the benefit of the estate, and under the pleadings it is not necessary that the jury award damages for the loss of consortium, nor is the plaintiff entitled to recover for destruction of the power to earn money, and that it was within the discretion of the jury not to allow damages for the loss of consortium * * *'. The court sustained Allen's motion. Willett v. Bradas & Gheens, 283 Ky. 525, 142 S.W.2d 139 (1940); Smith v. Crenshaw, Ky., 344 S.W.2d 393 (1961). The final verdict which is that shown above was rendered on February 17, 1966.
On February 22, 1966, Loew, administratrix, filed a motion for a new trial and 'to set aside so much of the verdict of the jury as awarded damages for the loss of consortium to the plaintiff as administrator of the estate of Flora Allen, deceased, for the reason that the right of recovery for loss of consortium is a personal right of the surviving husband individually and not as Administrator of her estate and could not be recovered in an action by the Administrator for the damage to her estate.' Complaint was made that 'after the jury had returned its verdict in open court' it should not have been directed to return to the jury room and award damages to the estate for the funeral bill.
Allen's attorney moved that he be permitted to amend the complaint 'by substituting the capacity in which the plaintiff filed said action as 'James B. Allen, Administrator of the Estate of Flora Allen, deceased' to 'James B. Allen, individually and as Administrator of the estate of Flora Allen, deceased." He also asked to be permitted to amend his complaint 'to conform to the proof and evidence * * * which * * * was to the effect that said complaint was based both in his...
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