Louisville & Interurban Railroad v. Frazee

200 S.W. 948, 179 Ky. 488, 1918 Ky. LEXIS 252

• Court: Court of Appeals of Kentucky
• Decided: February 26, 1918
• Status: Published

Opinion

Opinion op the Court by

William Rogers Clay, Commissioner —

Affirming.

Tbis is a personal injury action in wbieb plaintiff, Martba Frazee, recovered of tbe defendant, Louisville & Interurban Railroad Company, damages in tbe sum of $5,500.00, and of its co-defendant, Charles Scbneidtmiller, damages in tbe sum of $500.00. Tbe damages were apportioned as follows: For mental and physical suffering, $3,480.73; for medical and surgical treatment, $945.50; for nurse hire, $215.00;' for traveling expenses, $151.48; for cottage at Nantucket, $250.00; for infirmary expenses, $772.73; for drugs and medicines, $184.56. Only tbe Louisville and Interurban Railroad Company appeals.

, Tbe accident happened on July 2, 1914.. Plaintiff was ' standing in a small waiting room located five or six miles from tbe city of Louisville and near tbe intersection of 'the company’s right of way and tbe Blankenbaker road. It was her purpose to take an inbound car to tbe city. At that time an automobile truck belonging to Charles Schneidtmiller and driven by bis son, collided with the street car going east. Tbe truck struck tbe waiting room and plaintiff was knocked a distance of ten or fifteen feet. She received a scalp wound and several bruises on her arms and limbs. She was confined to her bed for about ten days and for part of the time during tbe next two •weeks.’ From that time on, she began to lose flesh and .■grow very nervous. She felt very bad and would cry most all the time. A few weeks later, she developed Weeping eczema. Her whole body became inflamed and she suffered intensely. For a while she remained in Louisville and was treated by Drs. Koehler, Bloom and Solomon, and blood tests were made by Drs. Baldauf and Allen. Her condition gradually grew worse and in the month of February she was taken to an infirmary in Boston where she was treated by several physicians, including Drs. Coffin and Fawcett. After remaining in Boston for several weeks, she was taken to Nantucket where a cottage was rented for her and her family for the summer months. She remained at Nantucket until the following September, when she returned to her home in Louisville. Her condition was such that it was necessary for her to travel on a stretcher. At the time of the trial in June, 1916, her skin trouble had practically disappeared and her health was beginning to improve. Ac- ' cording to Drs. Koehler and Solomon of Louisville, and Drs. Coffin and Fawcett of Boston, the diseased condition of her skin was attributed to the nervous shock which she received in the accident. According to Drs. Bloom, Marshall and Ravitch, the skin trouble was not caused by the accident.

Among the grounds urged for a reversal is, that the averments of-the petition with respect to plaintiff’s injuries were not sufficient to authorize proof of the skin eruption and to support a finding of damages on that account. The allegations of the petition are as follows:

“The plaintiff was struck, bruised and injured by parts of said automobile and station striking her and she was thrown upon the ground with force and violence; she was cut and bruised on the side of her head and bruised and injured about and over her body generally and at said time received a great shock to her nervous system and from said injuries, she suffered and will continue to suffer great mental and physical pain and anguish; her injuries are permanent and her power to earn money has been permanently impaired to her great damage in the sum of twenty-five thousand dollars.”

Having pleaded a shock to her nervous system and her consequent suffering therefrom, .we conclude that evidence of the skin eruption was admissible as- an external symptom tending to show the effect and extent of the nervous shock, Louisville Rwy. Co. v. Gaugh, 133 Ky. 473, 118 S. W. 276, especially in view of the fact that depositions concerning the skin eruption were taken several months before tbe trial and defendant could not complain of such testimony on the ground of surprise.

Another ground urged for a reversal is that tbe court improperly permitted tbe mother of plaintiff to testify that there was no blood taint in tbe family. Since tbe burden was on plaintiff to show that tbe sldn eruption resulted from tbe accident, evidence that such condition was not attributable to some other cause was clearly admissible. Instruction No. 5 is as follows:

“If yon find for tbe plaintiff you will state in your verdict which defendant you find against or whether you find against both defendants, and in awarding damages, if you find for tbe plaintiff, you may award a common sum against both tbe defendants, or you may award a different sum against tbe defendant, Eailroad Company, and the defendant, Scbneidtmiller. ” This instruction is assailed on tbe ground that it failed to furnish' tbe jury any standard by which separate damages should be assessed, but gave tbe jury free rein to fix tbe damages without taking into consideration tbe extent of each defendant’s negligence. In reply to this criticism it is sufficient to say that tbe instruction is correct so far as it goes and has frequently been approved by this court, Broadway Coal Mining Company v. Robinson, 150 Ky. 715, 150 S. W. 1000; Saad v. Brown, 144 Ky. 181, 137 S. W. 834, and if tbe defendant desired a more specific instruction apportioning tbe damages on tbe basis of each defendant’s participation in tbe wrong, such an instruction should have been offered. No such instruction having been requested, tbe defendant can not complain of tbe court’s failure to give it. Cincinnati, N. O. & T. P. Railway Co. v. Martin, 146 Ky. 260, 142 S. W. 410; McClintic-Marshall Construction Company v. Eckman, 153 Ky. 704, 156 S. W. 382.

Tbe point is also made that a finding of special damages on account of medical and hospital bills, nursing, traveling expenses, etc., was not authorized because there was neither pleading nor proof that such charges were reasonable, nor was tbe question of their reasonableness submitted to tbe jury. While tbe petition did not allege in terms that tbe charges were'reasonable, it did allege' that it was necessary for plaintiff to incur such expenses. When plaintiff’s mother was on tbe stand, she testified to facts showing plaintiff’s condition and the consequent necessity of incurring medical, nursing, traveling expenses, etc., to effect a cure. She not only produced her cancelled checks and receipted hills showing the payment of each item of expense, but she testified to the length of time her daughter was in the hospital or at the seashore, to the constant nursing she was required to have, • to the numerous articles which she'was compelled to buy, and to the character and extent of the services rendered by the attending physicians. A recovery of these items was authorized to the extent of the bills actually paid if the jury believed it was necessary for plaintiff to incur them.

It is generally held that the admission of evidence of the amount plaintiff was obliged to pay for physician’s services in treating him for alleged injuries is not error, though the reasonableness of the charges was not pleaded. Pinder v. Wickstrom, 156 Pac. 583; I. & G. N. Railway Company v. Boykin, 32 Tex. Civ. App. 72, 74 S. W. 93. While we are committed to the rule that special damages such as those in question must be pleaded, we think the rule is satisfied where the pleading is sufficient to apprise the defendant of the character and extent of the damages claimed. Construed in the light of this rule it can not be doubted that the allegations of the petition in question were sufficient to authorize a finding of special damages. And while there must be some proof of the reasonableness of the charges, we conclude that evidence of the character and extent of the services rendered, of the amount of medical supplies required, and of the circumstances under which the traveling expenses were incurred coupled with the further proof that they were all necessary and that the bills therefor had actually been paid, was sufficient to make out a prima facie case that the charges were reasonable. Michael Scullane v. Frederick T. Kellogg & Another, 169 Mass. 544, 48 N. E. 622; Western Gas Construction Co. v. Danner, 97 Fed. 882, 38 C. C. A. 528; Morseman v. Manhattan Rwy. Co., 16 Daly (N. Y.) 249, 10 N. Y. Supp. 105. In discussing the question in the last mentioned case the court said:

“Nor do we think it was error to admit evidence of the amount of the physician’s bills which plaintiff had paid, without proof of the value of the services. This is part of the expense to which he has been put by reason of the accident. In Gumb v. Railway Co., 114 N. Y. 411, 21 N. E. Rep. 993; the plaintiff gave evidence of a physician’s charge, but without giving evidence of payment or of value, and it was held error. The present case is different because plaintiff has paid the doctors’ bills. If a bill has not been paid, perhaps it would be well to insist on some proof of value to repel the suspicion of a collusive charge of a speculative fee. When the bill has actually been paid there is little ground for such suspicion, and plaintiff would always be open to cross-examination as to a fictitious payment. ’ ’ Here the defendant made no issue as to the reasonableness of the charges nor did it offer any evidence tending to show that they were unreasonable. Since plaintiff’s proof made out a prima facie case and there was no evidence to the contrary, no issue as to the reasonableness of the charges was presented, and the court did not err in authorizing a recovery to the extent of the bills paid if the jury believed that it was necessary for plaintiff to incur such expenses, without submitting to the jury the question whether such charges were reasonable. In disposing of a similar question in the case of Colwell v. Manhattan Rwy. Co., 57 Hun. (N. Y.) 452, 10 N. Y. Supp. 636, the court said:

“Another question remains to be considered in order to prove the actual pecuniary loss which she had incurred by reason of the injury. - The plaintiff testified that she employed a nurse, who remained with her for six weeks, and to whom she paid $100.00. No other evidence whatever was introduced as to the value of the services of a nurse. The trial judge, in his charge, instructed the jury that, in assessing the plaintiff’s damages, they were .to consider the expense which she had incurred for medical services and in the payment of the nurse, and told them that the nurse’s bill was proven at $100.00. The counsel for the defendant asked the court to charge that the plaintiff could not recover for the nurse’s bill of $100.00, because there was no proof as to what the services were reasonably worth. The court declined to charge as requested, stating as a ground for the refusal that it had been proved that the amount was paid for six weeks’ attendance by the nurse, whereupon an exception was duly taken in behalf of the defendant. I do not think the trial judge ered in refusing to give the instruction thus prayed for. No doubt it is the rule that there can be no recovery lor services unless there is some evidence as to their value., In Leeds v. Gas-Light Co., 90 N. Y. 26, and Kane v. Railway Co., 3 N. Y. St. Rep. 145, the judgments were reversed because, under the instructions given, it seemed probable that damages had been awarded to the plaintiffs on account of loss of time, whereas there was no proof as to the amount of their earnings, nor any other evidence by which the value of the time lost could properly be estimated. In the case at bar, however, there is not the. same absolute lack of evidence as to the value that there was in those cases In regard to property the rule is well established that the price therefor is some evidence of value. Hoffman v. Conner, 76 N. Y. 121. Similarly, I think, the 'price actually paid for personal services, such as those of this nurse, may be considered as some evidence of the value of the work performed, and constitutes competent proof sufficient to warrant the jury in considering the item in ' the assessment of damages.’,’

Judgment affirmed.

Whole court sitting.