23 Ind. App. 401 | Ind. Ct. App. | 1899
The appellee sued to recover damages for losses suffered by him through a personal injury to his wife caused by her falling upon a defective sidewalk. A demurrer to the complaint for want of sufficient facts was overruled. It is suggested in argument, that though the complaint contains an averment that the person injured was without fault, yet the facts stated show her negligence, it being claimed in argument on behalf of the appellant that the complaint shows the sidewalk to have been so defective that the appellee’s wife must be regarded as having knowledge of the danger, and the use thereof by her must be held to have been negligence on her part.
The complaint showed that the sidewalk, made of boards laid upon wooden stringers and nailed thereto, was in a very bad condition, the defects (such as might result from decay and want of repair) being particularly stated; and it is alleged that the appellee’s wife wns walking upon the sidewalk, without any fault on her part, "and without any knowledge of the dangerous, deadly, worn, unsafe, unnailed, rotten, unstable, and rickety condition of said walk and stringers, and while using all precautions and care, and doing everything possible to learn and know the condition of said walk, and while looking and examining the same with her eyes, one or more of the boards of the walk suddenly, and without any intimation or warning, gave way and went down at one end, making á hole in said walk into which her foot and leg went down, and at the same time the other ends of said boards went up striking and catching her,” etc. After relating -her injuries, it was averred that they were caused by the carelessness and negligence of the appellant, and without any fault or knowledge on her part.
It seems sufficiently evident from this recital that the objection urged against the complaint can not be sustained.
If the appellee was entitled to recover,.one element of his damages would be the necessary and reasonable expenses incurred by him for medical treatment of his wife for the injury suffered by -her through the appellant’s wrong. The question is presented as to whether the method of proof adopted by the trial court was allowable. It appeared in evidence that the appellee had paid this physician on account of these services the sum of $9, and that the remainder of his bill was unpaid. The reasonable value of his services was not shown by the other evidence. In such a case, if the physician’s bill has not been paid, the plaintiff can recover therefor only upon evidence of the reasonable value of the physician’s services. Gulf, etc., R. Co. v. Campbell, 76 Texas 174, 41 Am. & Eng. R. Cas. 100; McNaier v. Manhattan
In Gulf, etc., R. Co. v. Harriett, 80 Texas 73, 15 S. W. 556, it was held that the medical bills in themselves were not evidence, but there was no error in admitting them, the plaintiff being required to prove the facts and to show that they were reasonable by other testimony.
In Morsemann v. Manhattan R. Co., 10 N. Y. Supp. 105, an action for personal injuries, it was held not error to admit evidence of the amount of the physicians’ bills which the plaintiff had paid, without proof of the value of the services; and the case was distinguished from Gumb v. Street R. Co., 114 N. Y. 411, 21 N. E. 993, 43 Am. & Eng. R. Cas., 315, where- it was held error to receive evidence of the physician’s charge without evidence of payment or of value, other than the remark of the physician, who testified, “Seventy-five dollars is the amount of my bill now; that is very small too.” So, in Colwell v. Manhattan R. Co., 10 N. Y. Supp. 636, where the evidence showed that the plaintiff had employed a nurse to whom the plaintiff paid a certain sum, it was said that the price actually paid for the service might be considered as some evidence of value of the work performed, and constituted competent proof sufficient to warrant the jury in considering the item in the assessment of damages.
In City of Indianapolis v. Gaston, 58 Ind. 224, a case like the one at bar, it was said that whenever it is proper -in such a case to prove the services of a physician or surgeon, the fair value of such services is the legal scale.
In Summers v. Tarney, 123 Ind. 560, it was said that the presumption must be, until the contrary appears, that the amount paid out for surgical treatment was a reasonable and proper amount, that the question is as to the value of the services to the plaintiff, with the distinction that if the surgeon donates the services the real value is the measure, but if not, then it' is what the plaintiff necessarily becomes liable to pay.
The judgment is reversed, and the cause is remanded for a new trial.