Metropolitan St. R. R. v. Johnson , 91 Ga. 466 ( 1893 )

Bleckley, Chief Justice.

1. The court made no direct ruling as to whether the question objected to as leading was or was not so, but. suggested what the presiding judge deemed a better form of question. This suggestion was adopted by •counsel, and the question, in its original form, was not pressed. Surely no cause for a new trial can be found in this.

2. In trying the question of negligence by the company, or by its engineer, relatively to Mrs. Johnson on the particular occasion in controversy, and incidentally the question of her contributory negligence, it was not competent evidence to show that the usual custom of pedestrians, as observed by the engineer, had been on former occasions to do thus and so. Their conduct would be no measure of diligence for Mrs. Johnson, because that measure is to be found, not in the conduct of such persons merely as the engineer has observed, but in the conduct of every prudent person who might be placed in like circumstances with those which environed Mrs. Johnson at the time of this occurrence. This standard was not one for proof by witnesses, but was already in the minds of the jurors. They were to compare her conduct with that standard, and not with a standard raised in the mind of the engineer, or which might be raised in their own minds by what he had noticed relatively to the usual conduct of certain unknown and unnamed persons, who may have been more or less diligent than prudent persons generally. Nor was the rejected evidence relevant touching the company’s or the engineer’s negligence, for the engineer was bound to anticipate that Mrs. Johnson would act as a prudent .person according to a legal or jury standard, and not merely according to the usual custom of those pedestrians whom he himself had personally observed.

3. The action being for a tortious personal injury to the plaintiff’s wife, the court certainly did not err in charging the jury that, if the injury was committed, he could recover the reasonable value of her services which were lost to him during the period between the time of the injury and the date of trial. Without adjudicating the question, we will observe that our present opinion is, that the court could have gone further in respect to time so as to embrace any loss of service which would be reasonably certain to occur on account of the injury after the trial and during the probable existence of the coverture, the probable duration being measured by the continuance, according to the mortuary tables, of the joint lives of the matrimonial pair. Nor did the court err in charging that, in calculating the amount of the damages, the jury could take into consideration the nature of the wife’s services and all the circumstances of the case. When the loss of a wife’s services, resulting from a personal injury to her, is to be compensated for, she is not to be treated as an ordinary servant or as a mere hireling. Cooley on Torts, *226; Pennsylvania R. R. Co. v. Goodman, 62 Penn. St. 329. She sustains to her husband and his household a relation special and peculiar. Her place cannot be supplied; no other is capable of filling it. Some wives perform manual labor— • others do not; yet the husbands of the latter no less than those of the former would certainly be entitled to ■ compensation from wrong-doers for causing inability to perform service. The actual facts and circumstances of each ease should guide the jury in estimating for themselves, in the light of their own observation and ■experience and to the satisfaction of their own con'.scienees, the amount which would fairly and justly compensate the plaintiff for his loss. Certainly some elements of loss, sucb as manual labor, would be subject-to estimation by witnesses; and, if evidence of this kind were produced, of course the jury should consider it. together with the other facts. But what we hold distinctly is, that there need be no direct or express evidence-of the value of the wife’s services, either by the day,, week, month, or any other period of time, or of any aggregate sum. The court committed no error in denying a new trial.

While the argument here was in progress, counsel for defendant in error expressed a willingness for the judgment to be reversed, and entered his consent to that effect in writing on the transcript of the record. This was done in the hope of a reversal on the cross-bill of exceptions, and for the sake of the opportunity which that reversal would afford to recover in another trial more damages than the jury awarded by the verdict already rendered. But we are satisfied with that verdict, as was the court below, and consequently we leave it to stand.

Judgment affirmed. Cross-bill of exceptions dismissed.