Moody v. Osgood, 50 Barb. 628

Moody v. Osgood

50 Barb. 628 | N.Y. Sup. Ct. | 1868

By the Court,

George G. Barnard, P. J.

This action is brought by the plaintiff, a married woman, to recover damages for injuries sustained by her in consequence of being *633run over by the defendant, who was driving a sleigh with: a span of horses.

In the course of the trial the defendant, on his cross-examination, was asked, “ What did these horses cost you ?” The question was objected to, but the objection was overruled, and an exception taken. The witness in answer, said that one of them he had not bought at that time> and the other one cost him $3000. In charging the jury the judge, among other things, charged that if the jury found for the plaintiff at all, the necessary expenses for her sickness, including the doctor’s bill, and nurse’s, were items to be included by them in their estimate of the damages sustained by her.

The defendant requested the judge to charge that in this case the necessary expenses of physician’s and nurse’s bills, were not recoverable in this action, as an item of damages. The judge declined so to charge, and the defendant excepted. In both the above respects there was error. The cost of the horses had no bearing on the question of negligence on the part of the defendant, or want of negligence on the part of the plaintiff. (Palmer v. Haskins, 28 Barb. 91. Myers v. Malcom, 6 Hill, 293. Dain v. Wycoff, 3 Seld. 191.)

Damages in these cases are not to be estimated by, or proportioned to, the wealth of the defendant. Indirect proof of the wealth of the defendant is just as inadmissable as direct proof, and for the same reasons.

A married woman is not liable for the doctor’s or nurse’s bills, contracted for attendance upon her, unless she has charged her separate property therewith, of which there is no proof in this case. She, therefore, is not entitled to compensation for those items. The husband is liable for these expenses ; and in an action brought by him, they will constitute component parts of the damage sustained by him. We cannot say that the admission of the evidence as to the cost of the horses, and the refusal of the judge to charge as above requested, did not materially prejudice the defendant: *634on the contrary, the necessary tendency of both the admission and the refusal was to prejudice—the refusal as making him liable for items for which he is not liable in this action, but in an action to be brought by the husband; the admission as tending to enhance the damages by reason of an improper element, to wit, the wealth of the defendant.

[New York General Term, January 6, 1868.

For these reasons, without referring to any of the other questions raised, the judgment must be reversed, and a new. trial granted ; costs to abide event of the action.

Geo. G. Barnard, Ingraham and Sutherland, Justices.]