Opinion
No. 23378
Decided June 8, 1932.
Physician and patient — Malpractice — Liability to husband for loss of services of wife — Recovery limited to services between time of injury and death — Directed verdict — Intervening time between injury and death, not pleaded.
1. In an action based upon malpractice by a physician, resulting in the death of the patient, a husband may recover for the loss of his wife's services only between the time she sustained the injury and her resulting death.
2. In such case, when a petition is filed by a husband, praying for damages for loss of his wife's services, which petition contains no averment showing that any time intervened between the time of injury and the resulting death of the wife, a motion to direct a verdict for the defendant is properly sustained by the trial court.
ERROR to the Court of Appeals of Tuscarawas county.
The facts are stated in the opinion.
Messrs. Hart, Koehler, Blumenstiel Strong, and Messrs. Wilkin, Fisher Limbach, for plaintiffs in error.
Mr. J.C. Mitchell, for defendant in error.
In this case the plaintiff, A.T. Spinell, brought an action for damages against the defendants, Earl K. Shaweker and Fred A. Bowers, who are practicing physicians and surgeons, alleging that upon
February 20, 1930, the defendants performed an operation known as hysterectomy upon his wife, Rose Spinell, and that she died on the same day.
Plaintiff alleged facts sufficient to charge malpractice, and then set forth that by reason of such facts he had been deprived of the society, companionship and consortium of his wife, and prayed damages therefor. The answer of each defendant admitted the death, but denied any negligence.
At the conclusion of the plaintiff's testimony, the defendants moved the court to arrest the testimony and to instruct the jury to return a verdict for the defendants, which motion the court granted. The judgment rendered by the trial court upon this verdict was reversed by the Court of Appeals of Tuscarawas county, on the ground that the court erred in sustaining the motion to direct a verdict in favor of the defendants.
There is in this record nothing to establish that there was any instant of time between the performance of the operation and the death of the wife. No such averment was made in the petition. It is true that a husband has a cause of action for damages arising out of loss of services resulting from an operation upon his wife. 21 Ruling Case Law, 397. All elements of damage which arise solely from the wrongful death are excluded as a ground of recovery. Sherlag v. Kelley, 200 Mass. 232, 86 N.E. 293, 19 L.R.A. (N.S.), 633, 128 Am. St. Rep., 414. It is only where death is not instantaneous that the husband may recover for loss of his wife's services, between the time of the performance of the malpractice and the death of the wife. 21 Ruling Case Law, 398; 19 L.R.A. (N.S.), 633, note, and cases cited; Green v. Hudson River Rd. Co., 28 Barb. (N.Y.), 9; Wyatt v. Williams, 43 N.H. 102; Grosso v. Delaware, Lackawanna Western Rd. Co., 50 N.J. Law, 317, 13 A. 233; Womack v. Central Railroad Banking Co., 80 Ga. 132, 5 S.E. 63.
Hence the Court of Appeals was in error upon this record in reversing the judgment of the court of common pleas.
Judgment reversed and judgment of the court of common pleas affirmed.
MARSHALL, C.J., JONES, MATTRIAS, DAY, KINKADE and STEPHENSON, JJ., concur.