Graham v. Central of Georgia Ry. Co. , 217 Ala. 658 ( 1928 )

It is unquestionably settled by the decisions of this court, that, notwithstanding the wife must sue for personal injuries to herself, the husband may maintain an action for compensatory damages, not for the injury, but resulting therefrom, such as the loss of her services or society, the cost of nursing and caring for her, etc. People's Home Tel. Co. v. Cockrum,182 Ala. 549, 62 So. 86; Birmingham Southern R. Co. v. Lintner,141 Ala. 420, 38 So. 363, 109 Am. St. Rep. 40, 3 Ann. Cas. 461; Southern Ry. Co. v. Crowder, 135 Ala. 417, 33 So. 335; Morrison v. Clark, 196 Ala. 670, 72 So. 305. This is true, although the injury produces death which is not immediate, and notwithstanding the right of action for the wrongful death of the wife is confined to her personal representative under the terms of section 5696 of the Code of 1923.

"But if the injury resulted in her death, this cannot, at the common law, be taken into account, either as the ground of action or as an aggravation of damages, and the husband's recovery must be limited to the loss suffered intermediate the injury and death." Cooley on Torts (3d Ed.) p. 470. "At the common law no civil action can be maintained for the death of a human being, caused by the wrongful act or negligence of another, or for damages suffered by any person by reason of such death; but where death does not at once ensue, a person entitled to the services of the one injured, may recover for the loss accruing between the injury and the death, and such action is not barred by the death." Hyatt v. Adams, 16 Mich. 180.

The counts of the complaint in question do not seek a recovery for compensatory damages alone resulting from the injury between the infliction of same and the death of the wife, but charge the cause of the damage as resulting both from the injury to the wife and her death. The counts say, "And the plaintiff was damaged as the proximate result of said injuries and the death of his wife," and also claims damages which accrued subsequent to the death of the wife. It is not a question of claiming nonrecoverable damage in a complaint otherwise good and to be eradicated by a motion to strike rather than by demurrer, but the gravamen of the action is based both upon the injury to and the death of the wife.

We think that the trial court properly sustained those grounds of demurrer proceeding upon the theory of a misjoinder and the statement of two separate and distinct causes of action in the same count. Sudduth v. C. of Ga. R. R., 197 Ala. 393,73 So. 28; Southern R. Co. v. McIntyre, 152 Ala. 223, 44 So. 624.

The judgment of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BROWN, JJ., concur.

Upon Rehearing.