February 11, 2015
PAUL KINDERMANN JR. AND KAREN KINDERMANN, Appellants
JOSEPH CUNNINGHAM, Appellee
Argued, March 18, 2014
Appeal from the Order Entered May 16, 2013. In the Court of Common Pleas of Philadelphia County. Civil Division at No(s): 110900205.
Steven E. Wolfe, Holland, for appellants.
Carol A. VanderWoude, Philadelphia, for appellee.
BEFORE: BOWES, OTT, and JENKINS, JJ. OPINION BY BOWES, J. JENKINS J. joined the Opinion. OTT, J. filed a Dissenting Opinion. CONCURRING AND DISSENTING OPINION BY OTT, J.
Paul Kindermann, Jr. and his wife, Karen Kindermann, appeal from the May 16, 2013 order entered in Mr. Kindermann's favor in a negligence action that Appellants brought to recover damages caused by an ankle injury Mr. Kindermann sustained in a boating accident. The jury found Mr. Kindermann and Joseph Cunningham, the operator of the boat, each fifty percent negligent and the trial court molded the $10,000 verdict to $5,000, reflecting Mr. Kindermann's comparative negligence. No amount was awarded for Mrs. Kindermann's loss of consortium. The Kindermanns appeal from the trial court's refusal to order a new trial limited to damages. After thorough review, we affirm.
The trial court summarized the pertinent facts as follows:
Paul Kinderman[n] (Kinderman[n]), who lives in Bristol, Pennsylvania, with his wife Karen (Karen), accepted an invitation to go fishing on defendant Joseph Cunningham's boat off of Cape May, New Jersey. In addition to Kinderman[n] and Cunningham, there were three other passengers: Carl Kinderman[n] (Paul's uncle), Michael Brennan and Frank Grecco. While out on the water the boat encountered the wake of a large car carrier ship going in the opposite direction. Joseph Cunningham who was piloting the boat, shouted, " Hold on," and Kinderman[n], who was sitting on a storage box affixed to the deck near the front of the boat, was thrust into the air and landed on the deck. He suffered two broken bones in his right ankle requiring surgery that involved inserting a plate and screws. He was disabled and out of work for about fourteen weeks when he was released to work without restriction.
Trial Court Opinion, 10/2/13, at 2 (citations to record omitted).
The Kindermanns commenced the within action against Mr. Cunningham on September 6, 2011. At the jury trial commencing April 30, 2013, liability was hotly contested. The factual witnesses presented conflicting accounts of the events, upon which the expert witnesses relied to form their opinions, leading up to Mr. Kindermann's injury. Mr. Kindermann's medical bills were stipulated to be $28,541.15; his lost wages totaled $8,872.50. On May 2, 2013, the jury returned a verdict finding Mr. Kindermann fifty percent negligent and Mr. Cunningham fifty percent negligent, and awarding damages in the amount of $10,000 for Mr. Kindermann and zero dollars for Mrs. Kindermann on her consortium claim. The court molded the verdict to $5,000 to reflect Mr. Kindermann's negligence.
The Kindermanns filed a timely motion for post-trial relief seeking either judgment notwithstanding the verdict (" n.o.v'). or a new trial limited to damages only. The trial court denied the motion, and this appeal followed. On appeal, the Kindermanns raise four issues, all of which challenge the trial court's failure to award a new trial limited to damages. They contend that the damages were arbitrary and
contrary to undisputed evidence and the court's charge. They also maintain that the verdict was shockingly insufficient given Mr. and Mrs. Kindermann's uncontested injuries and losses.
We have long-recognized that
" Trial courts have broad discretion to grant or deny a new trial . . . [and,] absent a clear abuse of discretion by the trial court, appellate courts must not interfere with the trial court's authority to grant or deny a new trial." Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116, 1121-1122 (Pa. 2000) (internal quotations and citations omitted). In addition, " [t]he trial court's decision whether to limit a new trial to a particular issue or grant a new trial as to all issues will not be reversed absent an abuse of discretion." Chiaverini v. Sewickley Valley Hosp., 409 Pa.Super. 630, 598 A.2d 1021, 1024 (Pa. Super. 1991).
Banohashim v. R.S. Enters., LLC, 2013 PA Super 257, 77 A.3d 14, 22-23 (Pa.Super. 2013).
Where, as here, the Kindermanns sought a new trial as to damages only, other principles govern our review. Our High Court has held,
" new trials may be limited to specific issues only when this procedure will be fair to both parties. Where the question of negligence or contributory negligence is not free from doubt, it is an abuse of discretion for the trial judge to grant a new trial on the issue of damages alone." Gagliano v. Ditzler, 437 Pa. 230, 263 A.2d 319, 320 (Pa. 1970) (internal quotations and citations omitted); Nogowski v. Alemo-Hammad, 456 Pa.Super. 750, 691 A.2d 950, 958 (Pa. Super. 1997) (internal quotations and citations omitted). Specifically: a trial court may grant a new trial limited to the issue of damages only where (1) the question of liability is not intertwined with the question of damages, and (2) the issue of liability is either (a) not contested or (b) has been fairly determined so that no substantial complaint can be made with respect thereto. Gagliano, 263 A.2d at 320; see also Mirabel v. Morales, 2012 PA Super 241, 57 A.3d 144, 152 (Pa. Super. 2012).
Banohashim, supra at 23.
The trial court characterized this as " a close case[,]" one which arose out of an accident involving [a] mix of family, friends and acquaintances who were out fishing on a recreational boat on a clear, otherwise uneventful day and in which no other passenger on the boat claimed either injury or fear of injury." Trial Court Opinion, 10/2/13, at 10. Although the award was " low enough to raise an eyebrow," the court did not find it shocking. Id. at 8. Furthermore, it bore some relationship to the evidence, and the award did not defy " common sense or logic." Id. at 10. The court concluded that liability had been fairly determined and that the $10,000 verdict was a compromise verdict that should not be disturbed on appeal. Id. at 10 n.1. It reasoned that since Mrs. Kindermann's consortium claim was derivative of her husband's claim, it was " subject to the same compromises for lack of evidentiary integrity as the husband's claim. Beswick v. Maguire, 2000 PA Super 60, 748 A.2d 701, 705 (Pa.Super. 2000) ( en banc )." Id.
The Kindermanns largely ignore the trial court's characterization of the verdict as one involving a compromise. Instead, they argue that the jury's award of $10,000 in damages to Mr. Kindermann is " shocking, arbitrary, contrary to the evidence to the law" since it represents " a mere 27% of his total stipulated and uncontested economic damages of $37,413.65[.]" Appellants' Brief at 22. Furthermore, they rely upon Burnhauser v. Bumberger, 2000 PA Super 23, 745 A.2d 1256 (Pa.Super. 2000), in support of their contention that Mr. Kindermann was entitled to damages for non-economic loss such as
pain and suffering usually associated with surgical repair of his broken ankle.
Mr. Cunningham counters that the jury was permitted to compromise the hotly contested liability issue by reducing the damages it elected to award. See Gagliano, supra. According to Mr. Cunningham, the jury did just that. He distinguishes the authorities relied upon by the Kindermanns in support of a new trial limited to damages on the ground that those cases did not involve compromise verdicts. See Burnhauser, supra; Marsh v. Hanley, 2004 PA Super 299, 856 A.2d 138 (Pa.Super. 2004) (liability conceded); Womack v. Crowley, 2005 PA Super 230, 877 A.2d 1279 (Pa.Super. 2005). Furthermore, Mr. Cunningham argues that under Banohashim, supra, the grant of a new trial limited to damages would have constituted an abuse of discretion. Herein, liability was intertwined with damages, and " [c]onsequently, a new trial as to damages would not be 'fair to both parties.'" Appellee's brief at 17. Regarding Mrs. Kindermann's loss of consortium claim, Mr. Cunningham maintains that the jury was free to accept or reject her testimony regarding the impact of her husband's injury on the marital relationship and home.
" A compromise verdict is one where the jury, in doubt as to defendant's negligence or plaintiff's freedom from contributory negligence, brings in a verdict for the plaintiff but in a smaller amount than it would have if these questions had been free from doubt." Catalano v. Bujak, 537 Pa. 155, 642 A.2d 448, 450 (Pa. 1994); see also Davis v. Steigerwalt, 2003 PA Super 87, 822 A.2d 22, 31 (Pa.Super. 2003). Such verdicts were especially common prior to the Commonwealth's adoption of comparative negligence as the jury often considered the parties' respective degrees of negligence " as a practical matter." Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150, 154 (Pa. 1955). " The net result" was that " in a large majority of negligence cases where the question of contributory negligence is not free from doubt, the jury brings in a compromise verdict." Id. In Guidry v. Johns-Manville Corp., 377 Pa.Super. 308, 547 A.2d 382, 385 (Pa.Super. 1988), this Court, quoting the Supreme Court in Elza v. Chovan, 396 Pa. 112, 152 A.2d 238, 240 (Pa. 1959), reaffirmed that compromise verdicts " are not only 'allowed' but are 'expected[.]'" Furthermore, " the compromise can arise either 'out of damages or negligence or the balance of evidence concerning either or both, and the grant of a new trial may be an injustice to the defendant rather than an act of justice to plaintiff."
In Carlson v. Bubash, 432 Pa.Super. 514, 639 A.2d 458, 460 (Pa.Super. 1994), we held that " notwithstanding a finding of comparative negligence, when liability is contested and conflicting testimony is presented, compromise verdicts are permissible to establish an amount that the jury determined would justly compensate a plaintiff for his loss." Since Pennsylvania's comparative negligence law permits no recovery where the plaintiff is fifty-one percent or more causally negligent, and the jury is so instructed, there may be situations where issues of negligence and contributory negligence are so debatable that juries resort to a compromise verdict as to damages.
We agree with the trial court that this is such a case. Mr. Kindermann does not point to any trial errors that may have affected the jury's verdict. We also note that the jury was properly instructed on the consequences of a finding that Mr. Kindermann was fifty-one or more percent negligent. See Peair v. Home Ass'n of Enola Legion Number 751, 287 Pa.Super. 400, 430 A.2d 665 (Pa.Super. 1998) (holding jury must be informed of the consequence of its apportionment of negligence). Furthermore, there is no indication that the allegedly inadequate verdict was " the product of
passion, prejudice, partiality, or corruption." Davis v. Mullen, 565 Pa. 386, 773 A.2d 764, 766 (Pa. 2001). Rather, the record reveals that the eyewitnesses provided highly conflicting versions of the events. Expert opinions as to liability were predicated largely on those inconsistent facts. Whether Mr. Cunningham was negligent in his operation of the boat or in failing to warn Mr. Kindermann of the impending wake, and whether Mr. Kindermann was contributorily negligent in his choice of seat or failure to grasp the handrail, presented difficult issues based on the conflicting evidence presented. In light of the proof, the jury could have reached an impasse and returned the low verdict in order to reach an agreement on the liability question.
Compromise verdicts, by definition, reflect the jury's give and take on liability issues, resulting in damage awards that do not necessarily resemble the damages proved. The damage award in the instant case represented the classic compromise " where the jury, in doubt as to defendant's negligence or plaintiff's freedom from contributory negligence, brings in a verdict for plaintiff but in a smaller amount than it would have if these questions had been free from doubt." Catalano, supra at 450.
The trial court concluded that the jury in this case compromised its verdict, a finding that is amply supported by the record, and we defer to the trial court's assessment. The jury, at an impasse in resolving issues of Mr. Cunningham's negligence and Mr. Kindermann's contributory negligence, returned an equivocal fifty/fifty general damage award of $10,000. Mr. Kindermann could recover, but the lower damage award reflected the compromised liability. The conciliation is only more evident because the verdict was less than the stipulated economic loss. Nor can we assume, as Mr. Kindermann assumes, that the general damage award did not encompass damages for pain and suffering.
On these facts, a new trial limited to damages is unfair. Our Supreme Court held in Gagliano that " where a substantial conflict exists on the question of liability, such that a low verdict might indicate that the jury compromised the liability issue with the amount of damages awarded, it is an abuse of discretion for the lower court to grant a new trial limited to the issue of damages. Berkeihiser v. Di Bartolemeo, 413 Pa. 158, 196 A.2d 314 (1964)." Gagliano, supra at 231. Where, as here, liability was contested and testimony was conflicting, the jury's compromise verdict should be permitted to stand undisturbed. See Dawson v. Fowler, 384 Pa.Super. 329, 558 A.2d 565 (Pa.Super. 1989).
We conclude further that the trial court did not abuse its discretion in denying a new trial on Mrs. Kindermann's lack of consortium claim. The amount awarded for loss of consortium is " left to the sound judgment and common sense of the jury." Nudelman v. Gilbride, 436 Pa.Super. 44, 647 A.2d 233, 239 (Pa.Super. 1994). As the trial court recognized, Mrs. Kindermann's derivative consortium claim was also susceptible to compromise. Additionally, Mrs. Kindermann's claim was based entirely on her testimony, which " the jury was free to accept or reject, in whole or in part." Trial Court Opinion, 10/2/13, at 10. Although it was uncontested that Mrs. Kindermann was experiencing a high-risk pregnancy at the time of her husband's injury, and that Mr. Kindermann was unable to help his wife around the house, Mrs. Kindermann's mother had moved into the couple's home prior to the accident to provide her daughter with household assistance. N.T., 4/30/13, at 145. In light of this testimony, the trial court did not find the award of zero damages to be disproportionate
to the uncontested evidence, and we find no abuse of discretion.
For all of the foregoing reasons, we affirm.
Judge Jenkins Joins the Opinion.
CONCURRING AND DISSENTING OPINION
While, I agree with the Majority that the trial court did not abuse its discretion in denying the Kindermanns' request for a new trial on Wife's loss of consortium claim, I find the Kindermanns are entitled to a new trial limited to the issue of Husband's damages. Therefore, I am compelled to dissent.
In affirming the trial court's decision, the Majority focuses on the trial court's determination that the jury's award represented a " compromise verdict." Id. at 10, n.1. Indeed, the Majority asserts that where, as here, liability is hotly contested, a compromise verdict " reflect[s] the jury's give and take on liability issues, resulting in damage awards that do not necessarily resemble the damages proved." Majority Opinion, at 8. Further, the Majority concludes the " damage award in the instant case represented the classic compromise[.]" Id. For the reasons that follow, I disagree.
Appellate review of a trial court's ruling denying a motion for a new trial is deferential, and we will not " set aside a trial court's decision unless the trial court's decision was an abuse of discretion." Davis v. Mullen, 565 Pa. 386, 773 A.2d 764, 766 (Pa. 2001). Nevertheless,
[w]e have held that it is the duty of the trial court " to control the amount of the verdict; it is in possession of all the facts as well as the atmosphere of the case, which will enable it to do more evenhanded justice between the parties than can an appellate court." Thus, " a jury verdict is set aside for inadequacy when it appears to have been the product of passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff." Hence, a " reversal on grounds of inadequacy of the verdict is appropriate only where 'the injustice of the verdict [stands] forth like a beacon.'"
Id. (emphasis supplied and internal citations omitted).
After a review of the record and the relevant standard of review, I conclude the jury's award to Husband " bears no reasonable relation" to the " uncontradicted evidence" of his damages since the fact that Husband suffered an injury as a result of the fall was uncontested, and the amount of his economic damages was stipulated.
First, I note that the facts of this case are atypical. Indeed, many of the cases awarding a new trial on damages involve a jury award of either no damages, or only economic damages, despite a clear finding of a defendant's sole liability for an injury that, necessarily, involved pain and suffering. Conversely, here, there was no clear
finding of liability on the part of Cunningham. Rather, the jury determined that both he and Husband were equally liable in causing Husband's injury.
Second, this is not a case in which either the degree of the plaintiff's injury or the underlying cause of the injury, i.e., the existence of preexisting conditions, was vigorously contested so that a low damages award might reflect a compromise verdict. See Matheny v. West Shore Country Club, 436 Pa.Super. 406, 648 A.2d 24, 26 (Pa. Super. 1994) (affirming trial court's denial of a new trial on damages even though defendant admitted liability and jury awarded " low" verdict; plaintiff's injuries were " subjective" and " the degree of these injuries and their etiology were hotly contested." ), appeal denied, 540 Pa. 601, 655 A.2d 990 (Pa. 1995); Dawson v. Fowler, 384 Pa.Super. 329, 558 A.2d 565 (Pa. Super. 1989) (affirming trial court's denial of new trial on damages when jury entered verdict finding plaintiff and defendant both 50% liable, and awarding damages only in amount of medical bills; " the degree of [plaintiff's] injury, and any resultant pain and suffering, were subject to
question." ), appeal denied, 523 Pa. 636, 565 A.2d 445 (Pa. 1989).
Rather, in the present case, the issue of damages was not vigorously contested. Although Cunningham cross-examined both Husband and Husband's treating physician regarding the duration of Husband's injury and the legitimacy of any still lingering effects, he conceded the fact that Husband sustained a broken ankle as a result of the incident on the boat. Indeed, during closing remarks before the jury, counsel for Cunningham argued:
The only real issue in the case is whether or not Mr. Cunningham was negligent in operating his boat on the day that [Husband] was out with him. That's basically it. ... [W]e're not contesting [Husband] had a broken ankle, a broken leg. He had screws put in. We're not contesting any of that. He was back to work in 14 weeks, back to full duty climbing ladders. Dr. Ahmad cleared him for work. He had no restrictions to go back to work. We're not contesting any of that.
N.T., 5/2/2013, at 44-45 (emphasis supplied). Therefore, unlike the facts in Matheny and Dawson, here, there was no question Husband suffered an objective injury, for which he appropriately sought medical care.
Furthermore, I find the facts of the present case similar to those presented in Casselli v. Powlen, 2007 PA Super 362, 937 A.2d 1137 (Pa. Super. 2007). In Casselli, the plaintiff tripped and fell on a sidewalk outside of the defendant's home. It was undisputed that the plaintiff broke his foot in the fall, and incurred $1,578.00 in medical expenses. The jury returned a verdict finding both the plaintiff and the defendant each 50% liable for the fall, but awarded the plaintiff " zero" damages. The trial court denied the plaintiff's motion for a new trial on damages. Id. at 1138.
This Court reversed on appeal, concluding that the trial court abused its discretion in denying the plaintiff's motion for a new trial when the defendant's counsel " admitted, in his closing remarks to the jury, that [the defendant] did not dispute the fact that [the plaintiff] had sustained a broken bone in his foot as a result of the fall, and that it was reasonable for him to go to the emergency room of Hahnemann Hospital and to a foot doctor for treatment of the same." Id. at 1141. Further, this Court opined:
Here, an award of zero damages to [the plaintiff] ... with respect to a documented broken bone in his foot admittedly from his fall, represents a finding by the jury that absolutely none of the medical expenses incurred by [the plaintiff] for the medical treatment for the broken bone in his foot were related to that fall and that [the plaintiff] experienced absolutely no compensable pain whatsoever as a consequence thereof. Such is totally contrary to human experience and is in total conflict with the laws of this Commonwealth.
Id. at 1140-1141 (emphasis supplied).
I recognize in the present case the jury did not award " zero" damages, but rather awarded Husband an unallocated amount of $10,000. Had there been no evidence of Husband's medical expenses and lost wages presented to the jury, or had Cunningham disputed the amount of Husband's economic damages, i.e,. challenged the necessity of his treatment plan, I would have no basis upon which to question
the jury's determination. Here, however, Cunningham stipulated to the amount of economic damages Husband sustained as a result of that injury. The trial court instructed the jury on these stipulations as follows:
The parties agree that [Husband] sustained an injury in this incident. Therefore, if you find [Cunningham] negligent, you must award [Husband] damages for those injuries. [Husband] is entitled to be compensated for the amount of earnings that he has lost up to the time of the trial as a result of his injuries. This amount is the difference between what he could have earned but for the harm and less any sum he actually earned in any employment. In this case the attorneys have agreed that the amount alleged by [Husband] is $8,872.50.
If you find [Cunningham's] negligence caused [Husband's] harm, [Husband] is entitled to be compensated in the amount of all medical expenses reasonably incurred for the diagnosis, treatment, and cure of his injuries in the past. These expenses agreed to by the attorneys are $28,541.18.
N.T., 5/2/2013, at 74 (emphasis supplied).
Our Supreme Court has explained that although a jury is free to reject all or part of a witness's testimony,
this rule is tempered by the requirement that the verdict must not be a product of passion, prejudice, partiality, or corruption, or must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence presented at trial. The synthesis of these conflicting rules is that a jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.
Neison, supra, 653 A.2d at 637 (emphasis supplied and citations omitted).
Accordingly, I find the jury's failure to award Husband the full amount of his economic damages " so disproportionate to the uncontested evidence as to defy common sense and logic[,]" since (1) it was undisputed that Husband sustained his injury in the fall, (2) his treatment for the injury (a broken ankle) was unchallenged, and (3) the defense stipulated to the amount of medical expenses and lost wages. Id. (emphasis supplied). See also Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1, 5-6 (Pa. 1994) (awarding plaintiff a new trial on damages when jury's award of $25,000 for survival action did not " bear any rational relationship to the uncontroverted testimony" of plaintiff's expert that death of decedent yielded a net economic loss from $230,000 to $750,000). Therefore, I conclude the trial court abused its discretion when it denied the Kindermanns' post-trial motion, and Husband is entitled to a
new trial limited to damages with regard to his negligence claim.
Furthermore, I also disagree with the Majority's conclusion that, on these facts, a new trial limited to the issue of damages would be " unfair." Majority Opinion, at 8. This Court's decision in Nykiel v. Heyl, 2003 PA Super 480, 838 A.2d 808 (Pa. Super. 2003), is instructive.
In Nykiel, the minor-plaintiff was injured when the bicycle he was riding was struck by a vehicle driven by the defendant. The issue of liability was contested, and the jury returned a verdict, by special interrogatory, apportioning negligence at 50% for each party. Id. at 810. Despite uncontradicted evidence that the minor-plaintiff suffered a broken leg as a result of the accident, the jury awarded zero damages. Id.
Following post-trial motions, the trial court granted a new trial on both liability and damages. On appeal to this Court, the minor-plaintiff argued the trial court erred in granting a new trial on liability, as opposed to a new trial limited to the issue of damages. This Court agreed, concluding that while there was a " definite need to grant a new trial" on damages, there was " no reason that a new trial need to include the issue of liability." Id. The Nykiel Court explained:
The liability issue was fairly litigated and, given the arguments of both parties, would appear to have been fairly resolved by the jury's conclusion that both the minor-plaintiff and Appellee were equally responsible for the accident while the additional defendants were zero percent responsible. Further, we fail to see how the minor-plaintiff's injuries bear upon the issue of responsibility for the accident. As such, we see no need to relitigate the issue of liability. Moreover, the jury's verdict here does not meet the definition of " compromise verdict" .... Here, the jury did not return a verdict in a lesser amount than if the liability issue was free of doubt. Rather, the jury seemingly carefully concluded that both parties were equally at fault, but then, either out of confusion or some other unexplained reason, simply disregarded the uncontroverted evidence as to the minor-plaintiff's injuries and refused to award any damages.
Id. 838 A.2d at 812 (emphasis supplied).
The same is true in the present case. The trial court properly instructed the jury on the law of comparative negligence, and explained that if the jury found " the plaintiff was contributorily negligent and the split is 50-50 or less than 50 percent on the part of the plaintiff, then the amount of damages will be reduced by the court[.]" N.T., 5/2/2013, at 72 (emphasis supplied). Moreover, as discussed supra, the trial court specifically instructed the jury that if they found Cunningham negligent, and his negligence caused Husband's harm, Husband was entitled to compensation (1) " for the amount of earnings that he has lost up to the time of the trial as a result of his injuries[,]" which the attorneys " agreed" was $8,872.50, and (2) " in the amount of all medical expenses reasonably incurred for the diagnosis, treatment, and cure of his injuries in the past[,]" which the attorney " agreed" was $28,541.18. Id. at 74. I find the question of liability in the present case was fairly determined, and not intertwined with the issue of damages, but, for some reason, the jury " simply disregarded the uncontroverted
evidence as to [Husband's] injuries[.]" Nykiel, supra, 838 A.2d at 812 (emphasis supplied). Therefore, this case is substantially different from those cited by the Majority in which the jury was permitted to compromise damages as well as liability.
Accordingly, since I would reverse the trial court's order denying the Kindermanns a new trial limited to the issue of Husband's damages, I must respectfully dissent.