of May 8, 1895, P. L. 54, provides: "Whenever injury not resulting in death shall be wrongfully inflicted upon the person of the wife and a right of action for such wrongful injury accrues to the wife and also to the husband these two rights of action shall be redressed in only one suit brought in the names of the husband and wife." Section 2 provides: “Either the husband or the wife may waive his or her right of action and his or her failure to join in the suit within twenty days after service of a rule to join, or be barred, shall be conclusive evidence of such waiver; but if both join in the suit, separate verdicts shall be rendered," etc.

Mr. Justice Mitchell, in discussing the construction of this Act, said: "The first section is mandatory, 'shall be redressed in only one suit.' The evil it was designed to remedy was real. Where separate actions were brought and tried at different times before different juries, the latter were apt to duplicate the damages. In the husband's action generally tried first the injury and suffering of the wife were naturally part of the evidence to show the extent of the husband's deprivation of her services, and the jury's sympathies with her inevitably, even if not altogether consciously influenced his damages. Then when her action came to trial the jury if they happened to hear of the other verdict were always carefully told that it did not include anything for the wife. The evil was not only real, but in practice substantial, and the Act to remedy it was mandatory not only in terms but also in intent. But it is claimed that the second section is inconsistent with this view, and that a second action may still be brought unless the husband or wife not party to the first shall waive the right by failure to come in after notice and rule. But there is no necessary repugnancy in the sections. The first prescribes that there shall be but one action, and that it shall be brought in the names of the husband and the wife. If this section stood alone a plea in abatement of the non-joinder would be fatal to the separate action. If the husband refused to join as is said by his counsel that he did in this case, there would be a hardship to the wife without remedy. The second section gives the remedy by the rule to join or be barred by conclusive evidence of waiver, and thereafter the separate action may proceed. The rule, it is

to be observed, is not to bring or be allowed to bring a separate action, but to come into the joint action which alone is permitted or be barred altogether. The provisions of the second section are as much for the benefit of the husband and wife separately or jointly as plaintiff or plaintiffs as they are for the defendant, and there is no obligation on one more than on another to procure a rule. Secondly, as to constitutionality. There is no natural right in one person to damages for injury to another. At common law the husband had an action for damages for injury to the wife, whereby he lost her services, because he had the right to her services, including her earnings. The right arose from the common law relation of unity of person, the husband as to personal property and services being the person. But marriage is a civil contract involving rights under the control of the law-making power. The Legislature may sever the unity of person and as to property, the right to separate earnings of the wife and the damages for personal injury to her, it has already done so to a very great extent. It would be but a step further in the same direction to take away altogether the husband's action for loss of services of the wife. A fortiori the power to destroy the right entirely includes the power to regulate its exercise. There is no constitutional right which is infringed by this act.” 13

Although in a joint action by the husband and wife under the Act of May 8, 1895, to recover damages for personal injuries to the wife, the two verdicts work an apportionment of the damages; the defendant is not such a party in interest as can complain of a mistake in the apportionment.14

Excessive Verdicts.

141. Although the court in negligence cases has no power to direct the jury as to the amount of damages measured in dollars and cents, which may be recovered, it is not bound to accept a verdict which, in its judgment, is clearly and immoderately excessive. 15

13 Donoghue v. Consolidated Traction Co., 201 Pa. 181 (1902); see also Rockwell v. Sayre & Athens Electric Ry., 187 Pa. 568 (1898.)

14 Helsel v. Consolidated Trac. Co., 14 Super. Ct. 420 (1900.)

15 Gibbon v. Pennsylvania R. R. Co., 8 Kulp 492 (1897.)

Where in a suit for damages for personal injuries, the amount of a verdict shows that it must have been arrived at by the adoption of an erroneous measure of damages the court should either reduce or set aside the verdict.16

A verdict for $18,000 for the loss of a right arm is excessive, and a new trial will be granted on account of the excessiveness of the damages.17

A verdict for $10,000 will not be set aside where the plaintiff, a woman of more than ordinary intelligence who had shown herself possessed of considerable force of character, who was able and obliged and was engaged in making a livelihood for herself and family, was found by the verdict of a jury to have been turned by the negligence of the defendant from a person of apparent vigor and health to a condition of almost complete wreck and dilapidation. 18

Instruction as to Damages.

142. It is error for the court to use language which tends to inflame the damages. Thus a verdict for the plaintiff in an accident case will be reversed where the trial judge said to the jury, "No sane man would lose a leg for any compensation, but you are not to be guided by such a consideration as that in arriving at the amount of the damages.'

19

In an accident case where the age of plaintiff is thirty years, it is reversible error for the court to say to the jury: "You will probably be warranted in acting upon the rule that a man in good health would live to the ordinary age of sixty-five or seventy years." 20

Where a person who had been previously injured by a fall from the building claims to recover damages from a street railway company for subsequent injuries alleged to have been received in a collision while he was a passenger on one of its

16 Wood v. Roxborough, Chestnut Hill & Norristown Pass. Ry., 12 Montg. 155 (1896.)

17 Musser v. Lancaster City Str. Ry., 15 Pa. C. C. R. 430 (1894); 8 York 111 (1894.)

18 Mattis v. Philadelphia Trac. Co., 6 Dist. 94 (1897); 19 Pa. C. C. R. 106 (1897.)

19 Dooner v. Delaware & Hudson Canal Co., 164 Pa. 17 (1894-) 20 Dooner v. Delaware & Hudson Canal Co., 164 Pa. 17 (1894.)

cars, and the evidence is conflicting as to the character of the injury which he received on the car, and the testimony on the subject is voluminous and confusing, a judgment for the plaintiff will be reversed where the charge of the trial judge contained no clear statement of the questions involved, and no adequate presentation of any of them.21

Where in an action for personal injuries, plaintiff's counsel stated correctly to the jury the various elements of damage giving his view of the various items with amounts which they should find, to which the defendant's counsel objected before the jury retired, but in answer to the court says that he does not desire the court to further instruct the jury on the question of damages, it is not error for which a new trial will be granted.22

In a negligence case where the court merely specifies in a perfunctory manner the items constituting the damage claimed as the result of the negligence of the company it is reversible error for the court to neglect in its charge to instruct the jury as to the rules of law applicable to such items of damage as loss of earning power, pain and suffering, and expenses incurred as a consequence of the accident.23

In an action for personal injuries, the court instructed the jury that they could only give such damages as would compensate the plaintiff for her injury, “allowing her damages for the pain and suffering which she has undergone in the past and is likely to undergo in the future, and any permanent injury which you may deem she has suffered and also any expense which she has been put to in the way of obtaining relief." It was held that the charge was proper.24

In an action for damages for personal injuries, the court after stating to the jury that plaintiff should be compensated for the time she had already lost by reason of her injury and her doctor's bill, further charged that the plaintiff "is entitled to such reasonable sum in addition to that as you think she ought to have as a recompense to her, not a compensation, be

21 Tietz v. Philadelphia Traction Co., 169 Pa. 516 (1895.) 22 Steele v. Consolidated Trac. Co., 30 Pitts. 290 (1900.)

23 Todd v. Second Avenue Traction Co., 192 Pa. 587 (1899.)

24 Smedley v. Hestonville, Mantua & Fairmount Pass. Ry., 184 Pa. 620 (1898.)

cause you cannot compensate people for pain and suffering. No man would take the loss of an arm for any amount of money, but the law leaves it for you to judge

what reasonable sum she ought to have as a recompense for the pain and suffering she has suffered by reason of the accident." Such a charge was held not to be erroneous, as the objectionable expression was immediately followed by an instruction to the jury to fix the amount.25

In an action of trespass for personal injuries, it appeared that the accident on which the suit was founded was apparently trivial and there was nothing to indicate at the time that any serious results were likely to follow; that the injury to the plaintiff alleged to have been the consequence was as unusual as it was severe, and that suit was not brought until a year and a half after the accident without any notice to the defendant in the meantime. All that the court, in charging the jury, said about the accident was, "If this young woman, while she was in the act of getting off a car, was thrown to the ground and injured by reason of the conductor or motorman starting the car before she got off, then your verdict should be in her favor." The circumstances of the accident were not alluded to and no instruction was given to the jury on the subject of negligence and the burden of affirmatively proving it. A verdict and judgment for the plaintiff was reversed on the ground that the charge was inadequate.26

In an accident case the court charged the jury: “Is she utterly incapable of doing anything, or can she follow some occupation with her other hand? If her right hand is gone will she be able to do anything and to earn some money?" The evidence showed that her hand was not gone, the testimony showing that she suffered great pain in it, and that it was merely conjectural whether she would lose it in the future, it was held the charge was inadequate, if not misleading and that a verdict and judgment for plaintiff would be reversed.27

In an action for personal injuries where there is no evidence as to the age, habits, earning power or industry of the plaintiff

25 Willis v. Second Avenue Traction Co., 189 Pa. 430 (1899.) 26 Cooley v. Philadelphia Traction Co., 189 Pa. 563 (1899.) 27 Cooley v. Philadelphia Traction Co., 189 Pa. 563. (1899.)