Shreve v. Faris

• Decision Date: 01 December 1959
• Docket Number: No. 11040,11040
• Citation: 144 W.Va. 819,111 S.E.2d 169
• Court: West Virginia Supreme Court
• Parties: Robert SHREVE, an Infant, etc. v. Nell E. FARIS.

Page 169

111 S.E.2d 169

144 W.Va. 819

Robert SHREVE, an Infant, etc. v. Nell E. FARIS.

No. 11040.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 22, 1959.

Decided Dec. 1, 1959.

Syllabus by the Court.

1. In an action for damages, the plaintiff may recover for the loss or the impairment of the services and the society of his wife and of her capacity to engage in sexual intercourse, as elements of consortium, when it appears from the evidence that such loss or impairment results from injuries to his wife which are caused by the negligence of the defendant.

2. In an action by the husband to recover damages for loss or impairment of the consortium of his wife and expenses incurred by him for reasonable and necessary medical, hospital and domestic services, and expenses to be incurred by him for reasonable and necessary medical and hospital services in the future treatment of his wife for her injuries and in such treatment for future pain and suffering which, the evidence shows, are reasonably certain to be necessary as the result of her injuries caused by the negligence of the defendant, the jury may include, as damages, in addition to such loss or impairment of consortium and such expenses as have been incurred by him, any such future expenses if it appears from the evidence that it is reasonably certain that such future expenses will be incurred and will necessarily result from the negligence of the defendant.

3. The questions of negligence and contributory negligence are for the jury when the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them.

S. Robert Reiter, Wheeling, for plaintiff in error.

Handlan, Garden, Matthews & Hess, Wheeling, for defendant in error.

HAYMOND, Judge.

In this action of trespass on the case instituted in the Circuit Court of Ohio County, the plaintiff, Robert Shreve, an infant under the age of twenty one years, who sues by his next friend, seeks to recover damages from the defendant, Nell E. Faris, for present and future reasonable and necessary expenses for medical, hospital and domestic services and for loss or impairment of consortium, which have resulted and will result from personal injuries to his wife Martha Shreve, which he alleges were caused by the negligence of the defendant.

Upon the trial of the case in October, 1958, the circuit court refused to submit to the jury future medical and hospital expenses and any loss or impairment of consortium as elements of damages which the plaintiff seeks to recover and instructed the jury to return a verdict fot the plaintiff for only the amount of the actual medical, hospital and domestic expenses incurred by the plaintiff to the date of the trial amounting to $1,416.75. In response to such instruction the jury returned a verdict in that amount. On October 3, 1958, the circuit court overruled the motion of the plaintiff to set aside the verdict and grant him a new trial and entered judgment in favor of the plaintiff for the amount of the verdict with interest and costs. To that judgment this Court granted that writ of error upon the application of the plaintiff.

The plaintiff assigns as error the action of the circuit court: (1) In limiting the verdict of the jury to the amount of the actual medical, hospital and domestic expenses incurred by the plaintiff to the date of the trial; (2) in refusing to submit to the jury any element of damages for necessary future medical and hospital expenses and for loss of consortium; (3) in refusing to give to the jury certain instructions offered by the plaintiff; and (4) in requiring a medical witness to answer certain questions propounded by counsel for the defendant and in refusing to treat the testimony of the witness as evidence offered by the defendant and the witness as a witness produced in behalf of the defendant.

The defendant cross-assigns as error the action of the circuit court in directing a verdict in favor of the plaintiff for $1,416.75 and in refusing to submit to the jury the questions whether the defendant was guilty of negligence and the plaintiff was guilty of contributory negligence.

The injuries suffered by Martha Shreve, the wife of the plaintiff, which have given rise to this litigation, resulted from a collision between an automobile owned and operated by the plaintiff, whose wife at the time of the collision was sitting on the front seat of the automobile, and an automobile owned and operated by the defendant. The collision occurred on Market Street, a main public thoroughfare in the City of Wheeling, about three o'clock in the afternoon of March 29, 1956. When the collision occurred both automobiles were slowly proceeding north in the right traffic lane on Market Street. After they had crossed the intersection of that street with Tenth Street and when the automobile of the plaintiff had reached a point about five buildings north of the intersection it was struck from the rear by the automobile driven by the defendant.

According to the testimony of the plaintiff and his wife the automobile driven by the defendant struck the automobile of the plaintiff twice, the first blow knocking it forward approximately eight feet and the second blow again knocking it forward somewhat less than that distance. The defendant admitted that her automobile struck the automobile of the plaintiff but she was not sure that it struck it more than once. The impact of the collision threw the wife of the plaintiff against the interior of the automobile and caused severe and painful injuries to her neck, back and spine, one of the discs of which was ruptured. Immediately after the collision she was taken to her home and later to the emergency room of a local hospital where she was examined and her condition diagnosed. She was required to wear a brace on her back from August 7, 1956, until she entered a hospital on November 19, 1956, where she remained for a period of about eleven days, and in connection with treatment for her injuries she wore a plaster cast on her back for a period of about four weeks. She was initially treated for her injuries by her family physician and since July 30, 1956, she has been under the care of an orthopedic surgeon whose treatments continued until the trial of this action in October, 1958. She was pregnant at the time of her injury and gave birth to a child on April 29, 1956, and a few weeks before the trial she gave birth to another child.

Prior to the institution of this action the wife of the plaintiff instituted a separate action against the defendant and obtained judgment in the amount of $5,000 as compensation for her injuries and the pain suffered by her as a result of her injuries. That judgment has become final and presumably has been satisfied by the defendant. The award of damages in that case was based upon her personal right to compensation for her injuries and her present and future pain and suffering and, of course, there can be no recovery by her husband in this action for those elements of damages.

The term 'consortium', for the loss and impairment of which the plaintiff seeks a recovery from the defendant in this action, has many times been defined by the courts and in authoritative legal texts and treatises. In Black's Law Dictionary, Fourth Edition, page 382, the author, citing McMillan v. Smith, 47 Ga.App. 646, 171 S.E. 169; Shedrick v. Lathrop, 106 Vt. 311, 172 A. 630, and Harris v. Kunkel, 227 Wis. 435, 278 N.W. 868, defines consortium as the conjugal fellowship of husband and wife, and the right of each to the company, cooperation, affection, and aid of the other in every conjugal relation. In Smith v. Nicholas Building Company, 93 Ohio St. 101, 112 N.E. 204, L.R.A.1916E, 700, the court said that consortium includes the exclusive right of the husband to the services of his wife, and to affection, solace, comfort, companionship and society incidental to the marital relation. In the leading case of Guevin v. Manchester Street Railway, 78 N.H. 289, 99 A. 298, L.R.A.1917C, 410, the opinion contains this language: 'The term consortium as used at the common law to describe the husband's marital rights included three elements,--service, society, and sexual intercourse. It is conceded everywhere that any injury to or detention of the wife which interfered with the first of these rights gave the husband a cause of action, as did the infringement of the last by the debauchment of the wife. Until within recent years all American courts have assumed and held that injuries to the second element were also entitled to protection. The great weight of authority is still the same way. 'From before the days...