Galvan v. Summers

375 Mich. 285 (1965)

134 N.W.2d 177

GALVAN v. SUMMERS.

Calendar No. 5, Docket No. 50,591.

Supreme Court of Michigan.

Decided April 9, 1965.

*286 Riseman, Lemke & Piotrowski (Harry Riseman, of counsel), for plaintiff.

Cary, BeGole & Martin, for defendant.

SOURIS, J.

On March 17, 1960 plaintiff's husband was injured in an automobile accident proximately caused by defendant's negligence. Plaintiff and her husband brought separate suits, consolidated for trial, against defendant, plaintiff alleging loss of consortium. The jury returned verdicts of $1 for plaintiff and $3,000 for her husband. Plaintiff appeals from the trial court's denial of her motion for new trial.[1]

Plaintiff first argues that the verdict for $1 should be reversed as grossly inadequate because:

"The uncontradicted testimony in evidence was to the effect that she did massage her husband's back at least once a day for two years; that she was deprived of his love, companionship and sexual relationship."

By "loss of consortium" is meant loss of conjugal fellowship. Montgomery v. Stephan, 359 Mich 33, 36. In this case of Galvan, evidence was presented from which the jury would have been justified in concluding that plaintiff had suffered no, or only nominal, loss of conjugal fellowship. Thus, a disinterested witness testified that even before the accident plaintiff had been rubbing her husband's back every night because of "back trouble". Furthermore, *287 some of the circumstances testified to by plaintiff and her husband to establish plaintiff's loss of consortium were placed in dispute by the testimony of disinterested third parties and, as well, by contradictory testimony of plaintiff's husband. For example, plaintiff and her husband both testified that after the accident he was unable to lift anything, while a disinterested witness testified that shortly after the accident plaintiff's husband helped his wife carry a kitchen range down a flight of stairs and the husband himself testified that even after the accident he would lift 100 to 125 hogs each day at his job, each hog weighing about 50 pounds.

It is evident, then, that plaintiff's reliance upon Walker v. Britton, 193 Mich 174; Fleming v. Gemein, 168 Mich 541 (31 LRA NS 315); Fordon v. Bender, 363 Mich 124; and Mosley v. Dati, 363 Mich 690, is misplaced. In each of those cases we reversed a jury verdict for inadequacy because the jury either had found, or upon the basis of undisputed facts should have found, that an interest of plaintiff's had been injured, but failed to compensate therefor. In the case now before us, however, the jury was entitled to infer from the evidence that plaintiff's marital relationship did not deteriorate as the result of injuries suffered by her husband in the accident.

Plaintiff also argues that the trial court erred in refusing to charge the jury that plaintiff was entitled to damages for impairment of her husband's ability to support her.[2] Upon the facts of this case the argument is without merit. Since plaintiff's suit was consolidated for trial with her husband's suit and since an element of her husband's recoverable damages was the impairment of his ability to support *288 plaintiff,[3] to have permitted recovery by her for this same element of damages would have subjected defendant to double liability for the same loss. Indeed, the cases relied upon by plaintiff as the basis for the requested instruction specifically recognized that such double recovery should be avoided. We quoted from one such case, Hitaffer v. Argonne Co., Inc., 87 App DC 57 (183 F2d 811, 23 ALR2d 1366),[4] in Montgomery v. Stephan, 359 Mich 33, 42, to demonstrate that appropriate measures should be taken to avoid recovery by both husband and wife for the same element of damages. One such appropriate measure suggested by footnote, at p 42, was an instruction to the jury in such cases to limit the wife's recovery to loss of society and affection and the expenses she incurred in caring for him. Thus, in these consolidated suits the trial court did not err, to plaintiff's prejudice, in trying to obviate such double recovery by refusing to give plaintiff's requested instruction.

Affirmed. Costs to defendant.

T.M. KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SMITH, O'HARA, and ADAMS, JJ., concurred.

[1] Plaintiff's husband was granted a new trial when defendant refused to consent to an additur of $1,300, GCR 1963, 527.6, to which the trial court thought the husband was entitled because it appeared that the jury had not taken into account out-of-pocket expenses in making its award.

[2] The point was saved for appellate review by timely objection as required by GCR 1963, 516.2.

[3] The trial court instructed the jury that the husband was entitled to recover damages for wages lost as a result of the accident.

[4] Overruled on other grounds, see Smither and Company, Inc., v. Coles, 100 App DC 68 (242 F2d 220).