159 N.E. 96 | Ohio Ct. App. | 1927
This is a proceeding in error from the court of common pleas of Cuyahoga county, wherein a judgment upon the verdict of the jury was pronounced against the Cleveland Railway Company, the defendant below, and in favor of the defendant in error, Gertrude Kuncic, the plaintiff below, whose cause of action was a claim for damages by reason of a collision between an automobile driven by her husband, in which she rode as a passenger, and one of the cars of the defendant company, occurring about 5:30 a.m. on Christmas morning, 1924. *277
It appears that, while crossing what is known as the Collinwood bridge, which spans the tracks of the New York Central Railroad, the bridge became partially involved in steam and smoke, arising from underneath the bridge, and thereupon the automobile in which plaintiff was riding veered from the right or proper side of the road to the left or improper side of the road, and immediately a headlight of one of the cars of the railway company revealed the danger of the position of the automobile. Thereupon the driver of the machine undertook to veer to the right, apparently to get back to the proper place upon the highway, when the collision occurred between the street car and the automobile, resulting in the injuries complained of.
There have been two trials of the case. In the first there was a verdict for the defendant, but the judgment was set aside on the ground that it was clearly and manifestly against the weight of the evidence, and, upon being tried again, a verdict was rendered for the plaintiff in the sum of $2,000, to reverse which judgment these proceedings in error are brought.
One of the assignments of error is that medical expenses, based upon substantial professional services, were considered by the court below an issue in the case, and made the subject of instructions to the jury. There is no evidence in the record of substantive character that the wife, who was plaintiff below, and riding as heretofore noted with her husband, who was driving, had entered into either an express or an implied contract with the physicians and surgeons for their services. There is no question about an express contract, but there is a conflict, in claim at least, as to whether there is an *278 implied contract. An implied contract must depend upon substance for its existence. In other words, there must be some act or conduct of the party sought to be bound, from which an implied contract arises. It cannot arise from nothing, such as a conjecture or a possibility. It must rest upon a substantive foundation. In other words, it is just as necessary that there be a structure for an implied contract as it is conceded there should be for an express contract. The implication arises only from something which the party sought to be bound says or does.
In the instant case, these requirements are not met by the proof, because there is no act or conduct on the part of the wife that touches upon the obligation for service, except that she accepted the same. Under such circumstances, it is our judgment that, inasmuch as these services are necessities, the husband under the Ohio doctrine is bound for their payment. He is not excused, as was intimated by the court below, from liability, simply because of the provisions of Section 7999, General Code:
"A husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other."
This section of the statute in no way releases the husband from obligation as the head of the family for necessaries furnished the wife, and especially for services rendered for bodily injuries, which are in the nature of an emergency. The provisions of the statute are simply definitive of the rights of the *279 wife, but in no way confer the privilege upon her of the right to contract by paying the penalty of releasing her husband from his obligation for necessities, under the interpretation of the Ohio statutes as established by authority of the Supreme Court, and the statute in no way releases the husband from obligations of necessity that existed prior to its passage.
Section 7996, General Code, establishes the husband as the head of the family, and his wife must conform to any reasonable place or mode of living. Neither does Section 8000 alter the obligations of the husband, because of its provisions that the husband and wife cannot alter their legal relations.
Therefore, in our judgment, the court below committed prejudicial error in giving the following instruction to the jury:
"You also will award plaintiff, if you find in her favor, an allowance for physicians and hospital, medical bills which she has incurred, or to which she will become liable, caused directly by the accident, except those items of medical bills and hospital service which can, of course, be measured directly in the matter."
There is not only absence of proof in the record as to any contract on the part of the wife to pay for the services, but there is also no proof of a substantive nature as to the charges made by the physicians, or as to whether they were reasonable, or, further, as to whether there was a legal basis for professional charges caused directly by the accident to which she might become liable.
In City of Toledo v. Duffy, 13 C.C., 482, 7 C.D., 113, it is held that a husband is liable for the medical services rendered his wife, where there is *280 no special contract to the contrary, and it is further held in that case that, in a suit for damages by a married woman, expenses for medical attention are not to be considered by the jury in awarding damages, unless by special contract the husband is released. On page 484 of the opinion we read the following, which has an important bearing upon the instant case:
"If the wife being injured as was the plaintiff below in this case, sends as she might for a physician, and the physician comes, she is acting in that case as the agent of her husband, and he will be liable for the physician's bill, in the absence of a special contract between her and the physician whereby she herself personally becomes liable herself to pay him. The difficulty with this charge is, that it informs the jury that if the wife sent for the physician, employed him, and he attended her at the time she was injured, then she became personally liable. We do not so understand the law. We think it is very clear from the evidence in this case that there was no employment in a legal sense by her of the physician, and that the husband alone was liable; and we think it was clearly the duty of the court, under the testimony, to have directed the jury that the services of the physician could not be recovered by the plaintiff in this case as against the city."
Under such instructions there is only one conclusion, and that is the presumption that the jury conformed to the instructions of the court; and therefore to the verdict some amount, great or small, was added to the claim for actual damages; and the reasonable conclusion from the character of the professional services rendered, as outlined in the record, is that the sum was substantial. *281
In Tuttle v. Furi, 22 C.C., (N.S.), 388, 33 C.D., 626, it is held that, where such an item is included in damages, the error is not cured by remittitur, because, as in the instant case, there is nothing in the record to determine the amount.
This doctrine was laid down in Toledo v. Duffy, supra, and can also be found in Mt. Adams Eden Park Ry. Co. v. Wisong, 8 C.C., 211, 6 C.D., 28.
The court said at page 394, in Tuttle v. Furi, supra, bearing upon this point:
"We have no means of knowing whether or not this remittitur was made because under the charge the jury might erroneously have included these items amounting to $26 in their verdict. But whether so or not, the remittitur cannot cure the error in the charge in permitting the plaintiff to recover reasonable expenses incurred for `care' made necessary by the injury."
Thus it is our judgment that there is prejudicial error in the instruction now under discussion.
In Du Bois v. Coen, Ex'r.,
In the second ground of error in the instant case it is charged that under the record in the case the following instruction was erroneous, to the prejudice of the plaintiff in error:
"No vehicle shall stop on any road or highway, except with front and rear right wheels within *282 one foot of the right hand side of the improved portion of the road, nor in any such way as to obstruct a free passage of the road; provided that nothing in this section shall be held to apply whenever a driver of a vehicle is compelled or permitted to stop by reason of other lawful regulations, or emergency." (Section 6310-27, General Code; 110 O.L., 137, effective July 26, 1923.)
It is unchallenged in the record that the automobile of plaintiff below was on the left-hand side of the road when the collision occurred. The instruction above quoted could well be taken by the jury as an excuse or justification for being on the wrong side of the highway at the time of the accident, notwithstanding Section 6310-17 of the General Code of Ohio, which is as follows:
"Vehicles shall keep to the right side of the road or highway except when necessary to turn to the left in crossing the road or highway or in overtaking and passing another vehicle; provided that, in passing a vehicle going in the same direction such passing shall be made as close to the right hand side of the road or highway as practicable." 110 O.L., 136.
The instruction given leaves this material fact out of consideration, and therefore its tendency is to permit the jury to justify the act of leaving the right side of the railroad for the left, notwithstanding the provisions of the Code, and, in relation to this element in the case, the court, in describing Section 6310-17, used the following language:
"The violation of this section of the statute without excuse therefor is in law prima facie evidence *283 of negligence on the part of the driver of the automobile."
Concededly, the court was in error here, because the doctrine is settled in Schell v. Du Bois, Adm'r.,
"If you are of the opinion that he was negligent, and that his negligence was the sole cause of the injury to his wife, the plaintiff in this case, your verdict must be for the defendant."
Holding these views, the judgment of the court is hereby reversed, and the cause remanded.
Judgment reversed and cause remanded.
VICKERY and LEVINE, JJ., concur. *284
