Town of Elba v. Bullard , 152 Ala. 237 ( 1907 )

HARALSON, J.-

The record entry shows that “the defendant pleads, in short by consent, the general issue and contributory negligence.” Issue was joined on these pleas.

Under this agreement, the trial proceeded, and the, appellant admits, in brief of counsel, that it cannot insist on assignments of error from 1 to 34 inclusive, which related to pleas filed in.the cause — other than the general issue — which related to the alleged contributory negligence of the plaintiff, numbered from 1 to 5, and those marked B and C. Plea A was on motion of plaintiff stricken, and no error is assigned therefor.

What remains are those assigned, numbered from 35 to 46, having reference to the admission and exclusion of evidence, and to charges refused.

The question to W. J. Bullard: “Is it not a fact that, about six months before this accident, Dr. Bradley advised you to carry your wife to Montgomery and have an operation performed on her for overitis?” was objected to by plaintiff for irrelevancy and immateriality, and the objection sustained. In this ruling there was no error.

The issue on the trial was for an injury occurring, as alleged, from the negligence of defendant in January, 1904, and the real question was whether the injury complained of was produced by the fall plaintiff received when she fell through the bridge on the 12th of January, 1904. What Dr. Bradley may have advised, six months before the injury ivas received, as to witness’ carrying his wife to Montgomery for an operation was res inter alios. If Dr. Bradley gave him such advice, so long before the accident, this did not tend to show the fact of her physical condition at the time inquired about.

Questions propounded to plaintiff as to her ability to work, before and after the accident, the basis of errors assigned, numbered 39, 40, 41, and 42, were properly allowed. “In an action for damages for personal injuries, if such, injuries are permanent (as the evidence tends to show they were in this case), and which disable the party from labor, and diminish his capacity to earn’ money in the future, there may be a recovery of such an amount as will be a fair compensation for the plaintiff’s future diminished capacity to labor and earn money. To recover damages for loss of earning capacity, evidence of the earnings of the plaintiff before and after the injury is admissible for the purpose of comparison, the measure of damages being fixed with reference to the difference between plaintiff’s earning capacity before and after the injury complained of.” — 8 Am. & Eng. Ency. Law, 651, 652.

Defendant asked plaintiff: “Didn’t Dr. Bradley advise you, shortly after you fell through the bridge, to have the operation performed that was subsequently performed by Dr. Hill?” On the proof in this case, the question was immaterial.

The defendant inquired of Dr. Ooston: “If the plaintiff’s organs, which were removed by Dr. Hill, had been removed without any fall, would she be in .the same condition as she now is?” For aught appearing from the testimony introduced, no necessity was shown to exist before plaintiff’s fall, for removal of the organs; and the question assumes that such necessity did exist.

The earnings of the wife are her separate property, ami she has, generally, full legal capacity to contract, as if she'were sole, and may — within certain restrictions, not existing in this case — contract with her husband; and for injuries to her person she must sue alone. — Code 1896, §§ 2521, 2526, 2527, 2529. In S. R. Co. v. Crowder, 135 Ala. 427, 33 South. 335, it was properly held that, under these statutes, expenses actually paid or incurred by the wife, on account of personal injuries received by her, might become a legitimate claim in a suit by her.

The husband of plaintiff testified that he paid his wife’s expenses for her as her agent. He gave the items of expense incurred by him for his wife as such agent, on account of her injury, amounting to some $450, and said: “To pay these expenses, my wife agreed (in part) that she would deed me her place, of 80 acres of land, which is worth $15 per acre. She drew up a deed to the land from her to me, several days ago, but this deed has never been executed by her to me.”

The wife testified that the items of expense, as given by her husband, were correct, and she had agreed, verbally, to pay her husband for these items expended by him on her account and as her agent, and, to do this, had agreed to discharge him from an indebtedness of $300 which he owed her at the beginning of the treatment, and to convey to him 80 acros of land which her father had given to her, but had not yet deeded the same to him, and did not know why she had not done so. She was liable to her husband for the money which he had expended for her in paying the expenses, and her promise to repay him was a good one, supported -by a valid consideration.

Under this evidence, it would seem that the expenses of the cure were to be borne by the wife, and she was liable for them, and without reference to the 80 acres of land. The other items of expense she agreed to pay the husband, who was acting as her agent in the premises, amounted to about the same sum as the amount of the judgment recovered for her.

Charge 1 requested by defendant was properly refused. It was misleading.

Charge 2 requested by it was also properly refused. It assumes' that the expenses paid for the wife by the husband as her agent were incurred by him on his own account, which, under the evidence, was incorrect.

The judgment below is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and Denson, JJ., concur.