50 Neb. 867 | Neb. | 1897
Lund sued Golder for assault and battery. The defenses interposed were a denial of the assault, self-
Certain assignments of error are waived in the brief. Of those insisted upon, two relate to the admission of evidence with regard to the expenses of medical attendance in the treatment of plaintiff for the injuries alleged to have been inflicted upon him. The plaintiff, after narrating the circumstances and consequences of the alleged beating, testified that he called Dr. Bartlett to treat his wounds; that he was confined to bed for six weeks and required constant nursing. He was then asked this question : “What amount of money did you expend in employing physicians, or physician and medicine together?” This was objected to, the objection overruled, and an exception taken. Aside from other grounds of objection, which apply to another assignment of error and which will be noticed later, it is urged that this question permitted a recovery for any sum the plaintiff might have seen fit to expend. It is true that the measure of recovery for such expenses is not the sum actually expended, but is confined to the reasonable expense. (Hewitt v. Eisenbart, 36 Neb., 794; City of Friend v. Ingersoll, 39 Neb., 717.) In the cases cited, however, the evidence of actual expenses was not coupled with evidence that such expenses were reasonably incurred, and verdicts based solely on the evidence of actual expenditure were held bad for that reason. The rule whereby such expenditures are recovered is based upon the doctrine of avoidable consequences. It is the duty of the person injured to exercise reasonable precautions in order to render the injury as slight as possible. Failing to perform that duty, he cannot recover for consequences which might thereby have been avoided; therefore he is entitled to to recover the expenses reasonably by him incurred by reason of such precautions. As held in the cases cited, he may not recover his actual expense, regardless of its reasonableness. On the other hand, he cannot speculate
Dr. Bartlett, after testifying that he was a practicing physician in Dodge county, and had been such for three years, and that he had rendered professional services to the plaintiff in the treatment of his injuries, was asked: “What are your charges for attending the plaintiff during that sickness?” This was objected to as incompetent, irrelevant, and immaterial, and because no proper foundation had been laid for the question. The objection was overruled. In support of this objection it is urged that there was no evidence that Dr. Bartlett had complied with the provisions of chapter 55, Compiled Statutes, with regard to the practice of medicine; that he was, therefore, not shown to be qualified to testify as an expert in regard to the value of his services, and further, that section 15 of that chapter providing that no person who has not complied with the provisions of that act may recover for medical services, and the plaintiff not having at the time of the trial paid the bill, it was not shown that any expense had been incurred for which the plaintiff was legally liable. The first part of the argument does not meet the question, which does not relate to the value of the services, but to the actual charge therefor. The objection would apply, however, to the
A witness was asked the following question, referring to the plaintiff: “Were you acquainted with his disposition and character as to being peaceable or quarrelsome?” This was on objection excluded, and the defendant then offered to prove that the witness knew the disposition and character of the plaintiff, and that he
Several assignments relate to alleged misconduct of counsel in argument. The showing made was by affidavits in support of a motion for a new trial. There is very little conflict in the evidence as to what occurred. The trial judge having overruled the motion for a new trial, we should properly consider this evidence in the light most favorable to the plaintiff, but there being so little conflict, we accept the statement of defendant’s witnesses to the effect that during the closing argument one of the counsel for plaintiff said that he had known the defendant for a number of years; that they had always been good friends, and that later he said: “I tell you, Golder is a fighter, and he is the bully of that whole country up there when he gets his Irish up.” Thereupon the defendant excepted to the statement of counsel that Golder was a fighter and a bully; and the court said that the statement was improper and such statements should not be made. Counsel for plaintiff then said that the jury should not pay any attention to it, and the defendant still insisted on his exception. It does not appear that the language was repeated, or that any similar remark was thereafter made. It is urged that the mere remark of the court that the statement was improper was not sufficient without an admonition to the jury to disregard the statement, but the defendant’s proof shows that counsel
Counsel also, in argument, commenting on the testimony of the physician as to the time which it would take for the wound to heal, said: “I have had a good deal of experience with wounds myself, and I have never known a wound to heal up in as short a time as Dr. Inches said it would.” Objection was made to this language, but no ruling obtained from the court, and counsel desisted from stating his own experience. In order to render available an assignment of error based on improper language used by counsel in argument, not only must objection be made at the time, but a ruling obtained and an exception taken. (Gran v. Houston, 45 Neb., 813.) No ruling having been obtained on this objection, and counsel having yielded to the suggestion and desisted from further statements of that character, the language, if improper, which we do not decide, was not ground for reversal.
Affirmed.