McLean v. Kansas City

81 Mo. App. 72, 1899 Mo. App. LEXIS 364

• Court: Missouri Court of Appeals
• Decided: May 29, 1899
• Status: Published

Opinion

SMITH, P. J.

This is an action to recover damages for personal injuries. The plaintiff, a married woman, while walking on the sidewalk of one of the defendant’s streets in the night time stepped upon a defective board therein which gave way and caused her to fall over the curb into the street gutter below, in consequence of which her right leg was broken between the knee and ankle,. The injury so received was of a serious and permanent nature. There was a trial resulting in judgment for plaintiff in the sum of $2,500.

'DuréAofuiusband" cafattendlmce ’ A number of instructions were given and refused by the court but of these no complaint is made except as to the giving of the plaintiff’s second which told the jury that if they found for plaintiff to award her such a sum of mo:i:iey> as damages, as should fully compensate ker ^01’ physical pain and suffering and the mental anguish endured by her consequent upon her injuries sustained, the expense of medicines and medical attention attributable thereto and the loss to plaintiff of strength and efficiency already suffered and whatsoever might reasonably be expected to ensue in the future therefrom, if they believed from the evidence that said injuries or any part of them were permanent, etc.

It is contended by the defendant that this instruction is erroneous in enunciation, in that it authorized a recovery by the plaintiff for medicines and medical attention which were elements of damage to which she was not entitled. The general rule in actions of this kind is that the wife can recover only for the pain and suffering which she endures and for the loss of strength and efficiency by reason of the injury. Ross v. Kansas City, 48 Mo. App. 446; Thompson v. Railway, 135 Mo. 217. But the wife may recover for medicines and medical attention where the charge therefor is made against her. In such case these elements of damages are taken away from the husband and given to the wife. Reed v. Crissey, 63 Mo. App. 184; Rogers v. Wolfe, 104 Mo. 1. Under the present statute, section 6864, Revised Statutes, a married woman may make a valid contract for the employment of a physician or for medicines and could be sued thereon. Hill v. Sedalia, 64 Mo. App. 494. A husband is liable for necessaries furnished his wife. These consist of food, drink, clothing, medical attention, medicines, etc. Reed v. Crissey, 63 Mo. App. 184; Sauter v. Scrutchfield, 28 Mo. App. 150. A wife purchasing necessaries is by operation of law agent of the husband in such transaction. Reed v. Crissey, ante.

—: husband and attendance: evidence: instruc«on. , After the plaintiff was hurt, she was carried to her sister’s where some one by telephone requested the. attendance of Dr. Morrow, who came and gave plaintiff the medical attention then and thereafter for some months needed. He called Dr. Robinson to . 1 . . . assist him m the performance of a certain surgical operation deemed necessary. Before the plaintiff was quite well she requested Dr. Morrow to make known his bill. This he did not then do, as the plaintiff would require his further attention. Dr. Morrow testified that his books showed a charge for such services amounting to $440, and that the charge of his assistant would be $20 or $25. This testimony was given in answer to a question as to what was a reasonable charge for services that had been rendered by him and would be rendered in the future. The question was asked without objection; the answer was responsive to the first part of it.

It does not appear whether the charge on Dr. Morrow’s book was made against the plaintiff or her husband.

If Dr. Morrow was called to attend the plaintiff by her direction, or with her approval, she would be presumed to be acting within her implied authority as agent for her husband and her act would bind her husband for the liability for the reasonable value of the service subsequently rendered her by the physician so called. If she made a contract herself with Dr. Morrow for his treatment of her injuries then, under the law as declared in the cases already-referred to, she would be personally liable on her contract for the medical services rendered her in pursuance thereof, or if the doctor made a charge for such services on his books against her she would be personally liable. As the evidence does not tend to prove that the plaintiff made an express contract with her physician for the services rendered her by him as in Hill v. Sedalia, ante, nor that the charge in her physician’s books was made against her for such services, it is quite difficult to see any ground upon which she is entitled to recover of the defendant for medical services for which she has not paid nor is in any way legally liable. Nothing appears in the record to rebut the presumption of the liability of the plaintiff’s husband for the amount of the medical services rendered plaintiff, so that we are constrained to hold the instruction which authorized a recovery by her for such services was 'wrong.

——; medícines* evidence* instruction. ' It is objected further that the plaintiff’s instruction is erroneous in authorizing the jury to find for plaintiff for the value of the medicines used in the treatment of the plaintiff’s injuries, because there was no evidence adduced tending to prove the value of such medicine. It appears that very little medicine was used. There was evidence that a lotion and an anaesthetic were used but this seems to have been all These, we may presume, were procured at so very small an outlay as to hardly amount to an element of damage in the case. There is really no evidence to go to the jury which tended to show that plaintiff was entitled to recover anything on this account; and besides this,- there is no evidence that the plaintiff herself purchased the medicine or that she is liable for the same, so that what has been said in respect to her right to recover for medical attention is equally applicable to this item of damage.

The further objection that the instruction authorized a recovery for future medical services and medicines is not well taken. The words of the instruction to the effect that, “whatever may reasonably be expected to ensue in the future therefrom,” refer to “loss to plaintiff of strength and efficiency,” which may be reasonably expected to ensue therefrom and not to medicines and medical attention.

Af¡ce!'eowinrao" tkm-1v^revMMi!’ It is tacitly conceded by defendant that the damages awarded by the jury in this case are just and proper in all respects except as to those given for medicines and medical services. The amount of the latter under the evidence, can, in no event, exceed $500. What is our duty in view of this ? Shall ato reverse the judgment and remand the cause, and thus subject the parties to the delay and expense of another trial, or shall we order an affirmance of the judgment if the plaintiff will remit five hundred dollars ($500) of the amount of her recovery? We think the latter course will best subseiwe the ends of justice and accordingly it is ordered that the judgment be reversed and cause remanded, but if the plaintiff shall within ten days hence file a remittitur for five hundred dollars ($500) of the judgment, then it will be affirmed for two thousand dollars ($2,000). In either ei^ent the plaintiff to pay the cost of the appeal.

All concur.