having been pleaded.' There was no objection by Plaintiff on this point, nor was there any motion made for continuance of the case. Plaintiff's counsel, in his oral argument, admitted that this reason is wholly within the discretion of the Court. The substance of the evidence of Plaintiff's doctor was that Dow died of meningococcic meningitis, which was curable if taken in time. Defendant's doctor testified that Dow had a form of meningococcic meningitis known as Waterhouse Friderichsen Syndrome, which was not curable. Neither the Plaintiff's doctor nor the defendant's doctor saw or treated the patient in this case.
Defendant is not chargeable with plaintiff's surprise, if any. Plaintiff took her chances of the jury's verdict after medical testimony had been offered on both sides without making any objections thereto or asking for a continuance.
I am not convinced that a new trial should be granted for the purpose of giving Plaintiff an opportunity to offer additional medical evidence, nor does it appear to the Court that the refusal to grant Plaintiff's motion is inconsistent with substantial justice as required by Rule 61.
Plaintiff, in her 3rd and 5th reasons in support of her motion, alleges that the Court erred in admitting evidence of the divorce suits and orders of support which had been made in actions between the present Plaintiff, Harriet Dow and the decedent, Paul Dow. This evidence was received only on the question of damages. The jury found that the defendant was not negligent. This reason is not material in determining the present action for a new trial. If it was material, I am not persuaded that said evidence should not have been received on the question of damages.
The jury was instructed that if their verdict was for the Plaintiff, that she would be entitled to recover the funeral expenses and that part of Dow's income which would have gone to the support of his wife during her lifetime and to the support of his daughter during her minority. In considering this question, a number of facts necessarily had to be considered such as the age and health of the parties concerned; the income of the decedent; the amount thereof that had gone to the support of his wife and daughter; the relationship of the parties, whether living together or not; whether the husband and wife had been divorced as to bed and board and if so, how long that condition existed. The relationship at the time of the death of the deceased and other pertinent matters so that the jury could determine how much of the deceased's income would probably go to support of the wife and daughter in the future. See Cobia v. Atlantic Coast Line R. Co., 1924, 188 N.C. 487, 125 S.E. 18; Gilliam v. Southern Railway Co., 1917, 108 S.C. 195, 93 S.E. 865; Louisville & N.R. Co. v. Stephens, 1944, 298 Ky. 328, 182 S.W.2d 447; De Santis v. Maddalon, 348 Pa. 296, at page 299, 35 A.2d 72; Fogarty, Adm'r, etc., v. Northern Pacific Railway Company, 85 Wash. 90, 147 P. 652, L.R.A. 1916C, 803; Piland v. Yakima Motor Coach Company, 1931, 162 Wash. 456, 298 P. 419; Peterson v. Pete-Erickson Company, 1932, 186 Minn. 583, 244 N.W. 68; Vol. 16, American Jurisprudence, §§ 240, 241; 90 A.L.R. 923; In re Uravic's Estate, 1932, 142 Misc. 775, 255 N.Y.S. 638; Gilliam v. Southern Railway Company, 108 S.C. 195, 93 S.E. 865.
I am not persuaded, therefore, that such evidence was material on the question of damages.
Plaintiff, at the oral argument, withdrew reason 10 from consideration. In this reason, the Plaintiff alleged that the Court erred in permitting depositions to be sent out to the jury. It appeared, however, that the attorneys representing the Plaintiff and the Defendant, agreed that said depositions should go out to the jury.
The other reasons assigned by the Plaintiff in support of her motion for a new trial were not argued and are without merit.
© 1992-2004 VersusLaw Inc.