Abbitt v. St. Louis Transit Co.

104 Mo. App. 534 | Mo. Ct. App. | 1904

GOODE, J.

This plaintiff obtained a judgment for $500 against the defendant for personal injuries sustained by his wife in being thrown from the running board of a car by the negligent starting of the car as she was in the act of alighting. The only point made against the validity of the judgment is that the jury were erroneously instructed as to the measure of damages. The instruction of which complaint is made is this one:

“The court instructs the jury that if, under the -evidence and the other instructions, you decide to find for the plaintiff, you should assess his damages at such sum as you find from the evidence to be a reasonable compensation to him for any loss of services and of the society (that is to say, of the companionship) of his said wife, and for the reasonable value of his time expended by him in necessary personal care and attention to her, if any, which you may find from the evidence have been caused to plaintiff as direct results of said injury to plaintiff’s wife, as well as for such expenses as you may find from the evideuce plaintiff has necessarily incurred in taking care of his wife (from the time she was disabled to the present time) on account of the injuries she directly sustained, if any, in consequence of the injury complained of, in eluding therein compensation to plaintiff for such necessary expenses, on account of the reasonable value of medical services to, and medicines for, her, as you may find from the evidence plaintiff may have paid, or become liable for in consequence of said injury to his said wife. ’ ’

The first ground on which that direction is attacked is that there was no evidence plaintiff paid for any medicines for his wife, while she was under treatment for her injuries, and it was, therefore, erroneous to allow .the jury to take account of the cost of medicines in estimating the damages. So far as we have gathered in an attentive perusal of the testimony, no witness testified in opposition to the testimony for the plaintiff as to the extent of the loss he sustained by his wife’s injuries, and the only controversy that can be raised as to the amount of his damages is that different inferences could be fairly drawn from the testimony of the plaintiff and his witnesses as to their amount. Mrs. Abbitt’s jaw was fractured, her left arm broken and she received other injuries by her fall. In consequence of the accident she was kept in bed for weeks and her arm was treated by a physician for from four to six months. Plaintiff was compelled to desist from his employment, for which he was receiving $25 a week, to give her attention. He did this on the advice of her physician, who considered her condition so critical that it was necessary for her husband to be with her, as she was in an advanced stage of pregnancy. Besides, he had to employ a nurse for her during eight weeks and a servant to do the housework, which she was accustomed to do.

Plaintiff testified to the following estimate of his damages:

‘ ‘ 1. $3.50 per week for eight weeks paid to Miss Sylvia for nursing his wife............$ 28.00

2. $3.50 per week for Miss Sylvia’s board for that period............................ 28.00

3. $25 per week for eight weeks time lost by plaintiff while nursing his wife.......... 200.00

4. An average expense of $1.25 per week for a period not stated, paid girl to do the housework formerly done by his wife (31 weeks). 38.75

5. A loss of $12 a week in Ms earnings, beginning nine weeks after the accident ■ and lasting to the date of the trial (22 weeks) 264.00

6. A note for $250 in full for physician’s services, due June 1, 1903, about three months after date of trial....................... 250.00

Total......................$808.75

The verdict was for but $500, though no testimony was adduced to disprove the expense and loss plaintiff said he had sustained.

To reverse the judgment we must not only find error was committed, but that the error was not palpably harmless to the appealing party. We do not think the judgment ought to be reversed, even granting the court made a mistake in instructing the jury to allow the cost of any medicines which they believed from the evidence the plaintiff had purchased for his wife; for the evidence is conclusive that plaintiff’s other items of loss and expense exceeded the award, and it is incredible that the jury allowed more than a trivial sum, if anything, for medicines. Sherwood v. R. R., 132 Mo. 339.

The instruction is further complained of on the ground that there was no testimony that the doctor’s bill was reasonable. Mrs. Abbitt was attended by Dr. B. J. Ludwig, a regular physician and a graduate of a reputable medical school. He testified that his bill for attending plaintiff’s wife was $250, and that plaintiff gave him a well-indorsed note, but had not at the time of the trial, paid him in cash. There was no testimony that the charge was reasonable, but the presentation of the bill and its payment or settlement by note or otherwise, was some evidence that it was reasonable. In the absence of other evidence, cost is competent as tending to show value. Abbott’s Trial Brief, p. 600, and citation. We can see no reason why that principle of law is not applicable to the cost of medical services as well as of property. We have examined the Missouri cases in which there were reversals because of a lack of proof as to the value of medical attention, and in all of them there was no proof at all as to what was charged or paid. The opinions, while they do not pass on the question, appear to assume that the presentation and payment of a physician’s bill would be evidence of its reasonableness.

Further objection is made to the instruction that it allowed a recovery for the reasonable value of the plaintiff’s time while he was at home attending his wife, although the petition did not allege loss of'time, nor ask for special damages on that account. The lack of such an averment in the petition would have been good reason for objecting to the admission of evidence to show plaintiff lost time, or the value of the time he lost; but evidence on that question was received without objection and was, therefore, for the consideration of the jury; and the loss of time when proven, constituted an element of damages to be compensated. If an objection had been made during the trial, the petition could have-been amended. Chouquette v. Railroad, 152 Mo. 257; Dlauhi v. Railroad, 139 Mo. 291; Mellor v. Railroad, 105 Mo. 462; Neibhur v. Schryer, 35 N. Y. 615.

The verdict of the jury in this case fell below the damages which the evidence, by any reasonable inference, showed the plaintiff was entitled to receive.

The judgment is affirmed.

Bland, P. J., and Reyburn, J., concur.