Edminster v. Thorp

ADAMS, P. J.

Plaintiffs, Phillip Maurice Edminster and his wife, Laura G. Edminster, brought this action to recover damages for injuries suffered by Mrs. Edminster which were alleged to have been sustained in an automobile accident due to negligence on the part of defendant Howard Thorp, an employee of defendant Watkins Lumber Company, which company was the owner of the ear of which Thorp was the driver. Defendants admitted negligence and liability, and

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the only issue tried was that of damages. A judgment in favor of Mrs. Edminster based upon the verdict of a jury has been satisfied.

This appeal is taken from the judgment of $4,000 in favor of Phillip Edminster, the question raised, as stated in appellants’ opening brief, being “Was it prejudicial and reversible error for the Court to admit over objection by the defendants, evidence of the cost to plaintiff Phillip Maurice Edminster for household help supposedly made necessary as a result of his wife’s injuries, when the plaintiffs’ complaint contained no allegation of such special damage.”

The complaint alleged:

“That prior to said accident, said plaintiff Laura G. Ed-minster, the wife of plaintiff Phillip Maurice Edminster, was in good health and fully capable of and actually did perform all of the usual duties of a housewife; that as a result of said injuries, said plaintiff Laura Edminster has been, and will be for a long time to come unable to perform said duties; that by reason of the injuries to the said wife of plaintiff Phillip Maurice Edminister, said plaintiff has been and will be for a long time to come, deprived of the cohabitation and services and society of his said wife to his damage in the sum of $5,000.00, all of which is the direct and proximate result of the negligence, carelessness and recklessness of said defendants, as hereinabove alleged.”

Plaintiff husband testified, over the objection of defendants, that he had paid over $320 for household help, which amount, on cross-examination, was stated to have been at the rate of $1.00 per hour for an eight-hour day once a week for 40 weeks. He also urged that the cost of such household help during the ensuing five years—the period which medical testimony showed was the probable duration of disability of Mrs. Edminster— would be $2,080, which the jury should take into account in fixing the amount of the damages awarded to him.