December 15, 1961
BEDILLION ET VIR
Appeal, No. 295, April T., 1961, from judgment of Court of Common Pleas of Washington County, Sept. T., 1959, No. 221, in case of Jeanne A. Bedillion et vir v. Mary L. Frazee. Judgment reversed.
James M. Marsh, with him August L. Sismondo, and LaBrum & Doak, for appellant.
Sanford S. Finder, with him Vincent R. Massock, for appellees.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 21]
OPINION BY ERVIN, J.
The court below granted a new trial in this trespass case because it believed the verdict was inadequate. We will not reverse except for a gross abuse of discretion:
[ 197 Pa. Super. Page 22]
into this civil action the character and reputation of the plaintiff wife. ..."
When a husband sues for the loss of his wife's consortium he is not obliged to prove the value of the loss in dollars and cents. The fact of marriage to the injured spouse is itself enough to support a finding for recovery because "in such cases jurors, endowed with at least a modicum of common sense, may be supposed to have some knowledge of ordinary affairs of life." Kelley v. Mayberry Township, 154 Pa. 440, 448, 26 A. 595; Delaware Etc. R. Co. v. Jones, 128 Pa. 308, 315, 18 A. 330; Platz v. McKean Twp., 178 Pa. 601, 36 A. 136.
The term "services" "implies whatever of aid, assistance, comfort and society the wife would be expected to render to, or bestow upon her husband, under the circumstances and in the condition in which they may be placed, whatever those may be." Kelley v. Mayberry Township, supra, at page 447. See also Neuberg v. Bobowicz, 401 Pa. 146, 462 A.2d 662.
Particular acts as well as reputation may be used as evidence in mitigation of damages in an action for criminal conversation: Ehrhart v. Bear, 51 Pa. Superior Ct. 39.
The grounds for recovery in an action for criminal conversation are the violation of the right of consortium, loss of services, etc.: Matusak v. Kulczewski, 295 Pa. 208, 145 A. 94.
We can see no good reason why particular acts as well as reputation may not be used as evidence to mitigate damages in a trespass action where the husband claims for loss of consortium. The learned judge of the court below must have been of the same mind because the following occurred at the trial: "MR. SISMONDO (At side bar): I offer to prove by this witness that for a number of months prior to this accident, plaintiff and defendant, both the plaintiff wife and the defendant wife, went on dates with other men and that on the
[ 197 Pa. Super. Page 24]
night of this particular accident, they were going on a date with other men, and that we feel that we have a right to prove that in mitigation of damages, and we can also prove and will give the names of the men that these women met. Add to our offer, this occurred two or three times a week.
"THE COURT: We are going to permit her to testify to that, but we are not going to permit her to drag any names of these men she claims they were out with into this case. If she want to call them she can call them."
In the course of his charge the judge said: "She claimed that the conduct of the plaintiff wife when she was in company of the defendant was such that you should not put a very high value upon the loss of companionship and assistance and so forth for his wife. You have to consider the defendant's contention as to that because she wants you to reduce the amount of that compensation by what she, the defendant, claims has derogated and lessened the value of such services. The facts in this case, considered in the light of your own experience, must get you to a conscientious judgment of what amount of money would be fair and just."
If this evidence was admissible, and the judge so ruled, we do not understand how the court below could set aside the verdict because of the conduct of defense counsel. Defense counsel in our judgment had a perfect right to bring out evidence to show that the wife plaintiff spent little of her time to comfort and aid her husband but in fact worked in a hotel restaurant until midnight and then went on dates with other men after that hour. It must also be remembered that the wife-plaintiff, in her verdict of $1,500.00, was fully compensated for the $678.02 loss of wages and in addition thereto received the sum of $821.98. We fail to see how the wife with her busy life would have many hours to devote to her husband.
[ 197 Pa. Super. Page 25]
We conclude that the court below committed an error of law which amounted to a gross abuse of discretion in granting a new trial.
WRIGHT and FLOOD, JJ., would affirm on the opinion of the court below.
Judgment reversed and the record is remanded to the court below for the entry of judgments on the verdicts in favor of the plaintiffs, with interest from November 15, 1960.
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