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June 29, 1961

David SAMUEL, a minor by his parents and natural guardians, Anna Louise Samuel and Joseph Samuel, and Anna Louise Samuel and Joseph Samuel, in their own right, Plaintiffs,
Woodrow SANNER, individually and trading as Woodrow Sanner Co., Defendant, v. Joseph SAMUEL, Third-Party Defendant

The opinion of the court was delivered by: WILLSON

This civil action was tried to a jury. The verdict favored plaintiffs. The cause of action arose out of an automobile accident which occurred as Joseph Samuel was driving his car on Route 31 in this District. In the daytime and under normal driving conditions, plaintiff gradually brought his automobile to a stop behind a truck making a left-hand turn on the crest of a hill. While plaintiff's car was stopped, defendant's truck, going in the same direction, came in contact with the rear of the passenger car inflicting the injuries and damages which are the subject of this civil action. In the car, besides the driver, was his wife, Anna Louise Samuel, and his minor son, David Samuel. The jury awarded the minor boy $ 250. It gave the wife plaintiff $ 12,850. The award to Joseph Samuel was in the sum of $ 11,900. Judgments were entered on the verdicts, and defendant has filed a timely motion for a new trial.

In the trial of the case, the defendant made no serious contention of nonliability, and finally, at the close of plaintiffs' case, liability was conceded. The serious trial issues were the extent, nature and disabling character of the injuries suffered by Anna Louise Samuel. In defendant's motion some ten reasons for new trial are advanced, but it seems to this court that Reasons Nos. 5 & 6, only, require any serious consideration. In the fifth reason advanced, defendant says that the court committed fundamental error in its charge to the jury concerning the plaintiff Joseph Samuel's claim for loss of consortium; and in Reason No. 6, it is alleged that there is no sufficient or substantial evidence tending to support the amount of the jury's verdict in favor of Joseph Samuel. As the court understands it, the defendant argues that as a general proposition, the husband's award for consortium must be considerably less than the jury award to the wife for her pain, suffering and inconvenience.

 At this point it is appropriate to mention that at the conclusion of the charge to the jury counsel were asked whether there were any errors in the charge they wished corrected or whether they wished any additions to the charge as given. Each of the attorneys made requests which were granted, and thereafter no exceptions to the charge were taken, nor did counsel for the defendant raise the issues which he raises in his motion.

 The accident occurred November 9, 1956. At that time husband and wife were both 34 years of age. Defendant concedes that the verdict of the jury in favor of the wife plaintiff was reasonable in amount. In the husband's case, under the evidence, he was entitled to $ 110 for medical expenses for his son David. He was also entitled to $ 100 property damage to his car over and above the collectable insurance. He had a bill of his own for medical expenses for $ 10, and in behalf of his wife he had incurred expenses aggregating $ 2,012.78. Necessarily then the remaining amount, namely $ 9,667.22, was made up of damages for his own pain and suffering and his loss of consortium. It certainly must be conceded that the jury awarded him the major amount for his loss of consortium because his own injuries were minor.

 As trial judge, when the verdict was returned by the jury, I was well satisfied that all parties had received a fair trial and that the jury returned a just verdict.

 As the court understands defendant counsel's argument, he asserts that in the charge I placed undue emphasis upon the plaintiff husband's claim for loss of consortium, and in that connection he specifically claims that I characterized the consortium claim as 'a substantial item'. He then claims error in the court's definition of 'conjugal relations' as embracing the ordinary normal sexual relations between man and wife in the marriage state because, says counsel, there was no testimony elicited at the trial that there was any interference with the plaintiffs' marital relationship because of any injuries suffered by the wife. In his brief, counsel, at page 11, however, in speaking of the charge on loss of consortium says:

 '* * * In fairness, the charge on loss of consortium constituted a clearly stated exposition of this element of damage. * * *'

 He then quotes the charge in his brief in full on consortium.

 Under the evidence which the jury had before it, as trial judge, I fail to see where defendant was, in any way, prejudiced by the charge on consortium. Counsel, in reviewing the charge, in an effort to show undue emphasis on the point in question, refers to the number of pages in the record taken up by the various elements touched upon by the court in the charge. For instance, he says only one page was used to cover the question of the plaintiffs' burden of proof as it affects the question of damages. The question of credibility took only one-half page. The general outline of the question of damages took three pages altogether. He says the minor plaintiff's injuries were referred to in one short paragraph; and plaintiff Joseph Samuel's own claim for personal injuries was covered in a little over half a page. He then continues that the wife plaintiff's claim for damages was covered by the court in a little over two pages. As I understand it, he says undue emphasis results in part, at least, because the court took two and one half pages of the record to charge the jury as to the item of the husband's claim for loss of consortium.

 The issue boils itself down to the question then, that even though the court is complimented by defendant's counsel on the clear exposition of the element of damage called 'loss of consortium', nevertheless, it should not have been given because it amounts to undue emphasis on that part of the case. It is believed, however, that counsel reads that page of the charge out of context; especially, is that so when in the charge it is complained that the jury was told that the consortium item is 'a substantial item'. That phrase does not stand alone. The sentence referred to is preceded by a sentence which reads:

 '* * * So that question again, should be carefully considered by the jury. * * * '

 and it is followed by a sentence beginning:

 '* * * It is a substantial item no doubt, and it is an element that the jury will give fair and impartial consideration to, and award the husband a sum of money to compensate him for his loss of society, fellowship, so on, of the wife. * * *'

 In the many decisions which discuss the element of damage included in the claim for loss of consortium, I find no language specifically referring to diminution of sexual activity between a husband and wife mentioned. However, under all of the decisions, it seems perfectly clear that it is an item included in the subject matter. In all ...

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