standard of review re: demurrer to the evidence/directed verdicts
How later courts described this case
- standard of review re: demurrer to the evidence/directed verdicts
Written by the judges who cited it.
Distinguished
Distinguished by Fleming v. Baptist General Convention, 1987 Okla. LEXIS 302 (1987)
The defendant contends that Middlebrook, supra, is inapplicable because the cause of action arose in 1971 and the action was filed in 1973.
The opinion
SUMMERS, Justice,
dissenting in part and concurring in part.
I must dissent from that portion of the opinion awarding Mylynda Kay Middle-brook $175,000 for loss of consortium. She elected not to testify in support of her claim. In Hinkle v. Horton 1 the husband sued for loss of consortium. The only testimony before the jury was that of the injured wife. This court said:
... [W]e find the evidence to be insufficient to support an award therefor. True, Mrs. Hinkle testified concerning changes in her sexual abilities subsequent to the wreck and a general reference to her inability to perform certain other activities. But such evidence never ripened into a compensable basis for a recovery by plaintiff because it remained unnourished by evidence concerning what plaintiff himself lost in the way of consortium. Plaintiff did not testify in the case at all and there is no other evidence as to what the extent of such loss to him was, if any.” (emphasis added) 2
Assessment of damages for loss of consortium are among the most difficult to determine. Where the plaintiff herself declines to testify the verdict of necessity is based on speculation. The teaching of Hinkle is that a jury should not be allowed to speculate on whether or not a party is damaged by injuries to his or her spouse. Sometimes a consortium plaintiff is not damaged, even though the spouse was severely injured. 3 Large numbers of people spend good money each year to put away the companionship of their marital partner. 4 Unless the consortium plaintiff testifies the jury must speculate as to (1) whether she was damaged, (2) if so, how, and in what amount, or (3) whether she was in fact more unburdened than dam *589 aged by the incident. The consortium issue should not have been submitted to the jury,
In other respects I concur in the opinion of the majority.
I am authorized to state that HODGES, J., and HUNTER, Special Judge, concur in these views.
. 495 P.2d 117 (Okl. 1972).
. Id., at 119 .
. See Walker v. St. Louis San Fran Ky, 646 P.2d 593 (Okl.1982).
. Oklahomans filed 35,198 divorce cases in 1980.