Opinion
No. 34357
Decided February 8, 1956.
Negligence — Damages for personal injuries — Action by married womanto recover — Medical expenses not element of damages, when — Married woman liable for medical expenses, when — Evidence of physical disability and financial condition of husband improper — Verdict — Award of excessive damages not cured by remittitur, when.
1. In an action brought by a married woman to recover damages for her personal injuries, medical expenses may not be included as an element of the damages in the absence of proper proof of the payment of such expenses out of her separate property, or proof of an implied or express contract on her part to pay such expenses. To render a married woman liable for her medical expenses, they must have been furnished on her credit. ( Tille v. Finley, 126 Ohio St. 578, approved and followed.)
2. In an action by a married woman to recover damages for her personal injuries, the introduction of evidence concerning the physical disability of the husband and his adverse financial condition is improper and objectionable, as tending to induce the jury to return its verdict based on sympathy for the plaintiff, and where an award of excessive damages results therefrom the court should set aside the verdict; and such verdict is not given validity by the granting by the trial court of a substantial remittitur. ( Toledo, Columbus Ohio River Rd. Co. v. Miller, 103 Ohio St. 17, approved and followed.)
APPEAL from the Court of Appeals for Mahoning County.
This cause originated in the Court of Common Pleas of Mahoning County. The parties will be referred to hereinafter in the capacities in which they appeared in the Court of Common Pleas.
The plaintiff, Margaret Hudock, filed her petition seeking damages from the defendant railway company for injuries suffered by her in a fall on a bus as she was boarding it, which bus was owned and operated by the defendant. The petition alleges that she tripped on a bump in a step of the bus and as a result fell and injured her right leg so that she "was completely incapacitated for a period of time and could not walk normally for an additional period; that prior to said fall plaintiff enjoyed full and comfortable use of her right leg, but that since said fall plaintiff frequently experiences sharp pains in said leg; all to plaintiff's damage to the sum of four thousand * * * dollars ($4,000)."
The defendant filed its answer which is substantially a general denial.
Upon trial of the case to a jury, plaintiff offered as a witness the physician who had treated her injuries. After testifying as to his treatment of her, the physician was interrogated and answered as follows:
"Q. What was the total amount of your bill, Doctor? A. $69."
Prior to that time, plaintiff in response to a like question had answered that the bill was $69. At that time the following occurred between the court, counsel and plaintiff as witness:
"The Court: Wait. Is Mrs. Hudock married?
"Mr. Fox: She is married, but she was working and paid her own bill.
"The Court: She is not living with her husband?
"The Witness: Yes.
"Mr. Fox: Yes.
"The Court: Well, the question of the liability for her medical bills — well, you go ahead and find out what the fact is, and I will instruct the jury accordingly.
"Q. I will establish this: When you went to see the doctor, Dr. Kendall, that is, did you promise to pay the medical bills yourself?
"The Court: I don't think that makes any difference."
On redirect examination of the plaintiff, medical expenses were again involved and the following occurred:
"Mr. Fox: Now, your Honor, we were going to establish one thing as far as the medical bills yesterday. You mentioned the fact as to her relationship with her husband. I would like to establish that now.
"The Court: Go right ahead. It may be done on redirect.
"Q. Mrs. Hudock, you are living with your husband; is that correct? A. Yes.
"Q. What is his physical condition? A. Well, he is in bad shape. I mean he is very sick. Half the time he don't work. In fact, he is in a hospital right now.
"Q. He is in a hospital right now? A. Yes.
"Q. Is he receiving any sort of compensation? A. Twenty-one dollars a week.
"Mr. Wright: Your Honor, I object to this. I don't think it is any part of this lawsuit as to whether she fell on the bus or didn't fall on the bus.
"The Court: Well, now, wait a minute, Mr. Wright. Didn't you object to her introducing medical testimony?
"* * *
"Mr. Wright: It certainly is all right with me, your Honor, for him to put the testimony in as to the amount of the bills, but I think that is all that is necessary.
"* * *
"Mr. Fox: Would you answer? Read the question, please.
"(Last question and answer read by the reporter.)
"The Court: Well, I don't care about that. Now, that isn't important. It is the status of the parties that is important.
"Q. I will rephrase the question. How long has your husband been incapacitated? A. About eight years.
"The Court: I don't think you need to go into that any further. That brings us to the point. I will have to look it up and rule accordingly."
The charge of the trial court to the jury contained the following reference to medical expenses:
"Now, the question of medical expense is ordinarily, in the case of a married woman living with her husband, just not in the case because that under the law is the right of the husband, not the wife, he being liable for her medical expense in the first instance. The law does permit it to be included, however, in the wife's case under certain circumstances, as I shall explain them to you, and you shall include medical expense if, and only if, you find those circumstances present.
"Ordinarily a husband is responsible for the necessary medical bills and is the one to recover, and not the wife, in this kind of a case. However — and this is the exception — a wife living with her husband may assume primary liability for such expenses. She may by her conduct and her arrangements with the doctor assume with him and agree with him that she shall pay herself, not her husband, for those expenses. Now, if she does that, then in this case she would be entitled to a recovery on the part of any medical expense shown by the evidence that she was put to. Now, you will give attention to these matters if you get to this fourth issue and determine in one lump sum how much plaintiff is entitled to recover."
The jury brought in a verdict for the plaintiff in the sum of $4,000. A motion for a new trial was filed by the defendant, whereupon the Court of Common Pleas found "the verdict of the jury in its amount not sustained by sufficient evidence," and ordered a remittitur of $2,000 if the plaintiff consented, otherwise the motion for a new trial would be sustained. The plaintiff accepted the remittitur and judgment was entered for her in the sum of $2,000 and costs.
An appeal on questions of law was perfected to the Court of Appeals by the defendant. That court, in affirming the judgment of the trial court, in its judgment entry said in part:
"* * * that the verdict of the jury was excessive; that the trial judge did not err in ordering the remittitur shown by the record; * * * that the verdict was not the result of passion and prejudice and that the trial judge did err in the admission of evidence pertaining to medical expenses, but * * * this error was not so prejudicial as to justify a new trial in view of the amount of the remittitur ordered by the trial judge."
The cause is before this court upon the allowance of a motion to certify the record of the Court of Appeals.
Messrs. Traxler Beil, for appellee.
Messrs. Harrington, Huxley Smith and Mr. Eldon S. Wright, for appellant.
As stated by the defendant, the first question presented is whether evidence of dependency of the family or the unfortunate domestic situation of a plaintiff in a personal injury action is objectionable and inadmissible, and if so is it not mandatory for the trial court to grant a new trial where the verdict of the jury is found by that court to be excessive and where there is evidence to show the verdict was rendered by an impassioned and prejudiced jury.
As disclosed by the evidence, this testimony as to the family situation of the plaintiff was introduced in an effort to justify a recovery by the plaintiff, a married woman, of the medical expenses resulting from her injury. Ordinarily, in order to warrant any recovery for the expense of cure, some evidence must be given of the value or actual cost and necessity of medicines and attendance. Where the action is brought by a married woman to recover for her personal injuries, medical expenses cannot be considered as an element of her damages, in the absence of anything to show an implied or express contract on her part to pay for such medical services. The husband is ordinarily bound to pay for the medical services rendered to the wife as a necessary, and he has legal claim against the wrongdoer for the amount thus paid. 13 Ohio Jurisprudence, 117, Section 42; 4 Shearman and Redfield on Negligence (Rev. Ed.), 1939, Section 854; Baltimore Ohio Rd. Co. v. Glenn 66 Ohio St. 395, 64 N.E. 438; Belyea v. Minneapolis St. Paul Sault Sainte Marie Ry. Co., 61 Minn. 224, 63 N.W. 627; Tompkins v. West, 56 Conn. 478, 16 A. 237.
In the following cases the wife was permitted to recover for her medical expenses upon proof that she had become liable for the payment thereof: Baum v. Bahn Frei Mutual Bldg. Loan Assn., 237 Wis. 117, 295 N.W. 14 (injured wife had agreed to pay doctor bills); Jyachosky v. Wensil, 240 N.C. 217, 81 S.E.2d 644 (medical expenses paid from joint property of husband and wife); Roper v. Brooks, 201 La. 135, 9 So.2d 485 (wife separated from her husband prior to accident and self-supporting).
With those cases and texts we agree, and it seems clear that Margaret Hudock could have recovered for her medical expenses upon proof that she had paid them or that she had by contract become liable for the payment. It is not necessary to show that at the time of the trial the medical expenses were paid by the plaintiff, it is sufficient if there is correct evidence that she became liable for the payment. Larzo v. Swift Co., 129 W. Va. 436, 40 S.E.2d 811, and Thibeault v. Poole, 283 Mass. 480, 186 N.E. 632.
In the case of Tille v. Finley, 126 Ohio St. 578, 186 N.E. 448, an action where a doctor was suing the husband of his patient for payment of medical services, this court held that proof of the doctor's account must be made by evidence that he had rendered the services on the credit of the husband and was looking solely to him for payment.
An unpaid bill rendered to a wife has been held admissible as proof of her liability for such medical services. Warren v. City of Bridgeport, 129 Conn. 355, 28 A.2d 1.
In the instant case, the doctor testified and answered a direct question as to the amount of his charges. However, the court indicated immediately that it would handle the question of medical expenses in its charge, and plaintiff did not then ask the doctor further questions to establish who owed his bill. A proper way to have proved plaintiff's liability therefor would have been to continue along this line to determine on whose credit the services were rendered and to whom the doctor was looking for payment. As a result, testimony was offered tending to show that the wife would be required to pay this bill because of the poor physical condition of her husband and his inability to work. This testimony is claimed by the defendant to have been highly improper as tending to induce the jury to return a verdict based upon its sympathy for the plaintiff rather than upon the testimony as to the cause of her injuries and the amount of compensatory damages to which she was entitled.
Was this evidence such as to show that the verdict of the jury was the result of passion and prejudice thus entitling the defendant to a new trial?
The general rule is stated in 15 American Jurisprudence, 782, Section 343, as follows:
"In actions for damages by reason of alleged negligence evidence as to the financial standing of the parties is inadmissible. It may be stated as a general rule that in damage actions in which compensatory damages only are recoverable, evidence is not admissible, directly or indirectly, to show the wealth or financial standing of either the plaintiff or the defendant, except in those exceptional cases, such as actions for defamation or injury to reputation, where the position or wealth of the parties is necessarily involved in determining the damages sustained. It has ever been the theory of our government and a cardinal principle of our jurisprudence that the rich and poor stand alike in courts of justice and that neither the wealth of one nor the poverty of the other shall be permitted to affect the administration of law. Where exemplary damages are recoverable, however, the court says the general rule permits evidence to be given of the pecuniary circumstances or wealth of either party." See, also, 4 Ohio Jurisprudence (2d), 228, Section 975; City of Galion v. Lauer, 55 Ohio St. 392, 45 N.E. 1044; Warder, Bushnell Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97; Maggio v. City of Cleveland, 151 Ohio St. 136, 84 N.E.2d 912 (note paragraph two of the syllabus); Taulborg v. Andreson, 119 Neb. 273, 228 N.W. 528.
The jury returned a verdict for the full amount prayed for, and the remittitur reduced it by 50 per cent. However, if the jury was influenced by this incompetent testimony appealing to its sympathy, the remittitur did not erase the prejudicial error. In the case of Toledo, Columbus Ohio River Rd. Co. v. Miller, 103 Ohio St. 17, 132 N.E. 156, after testimony and a charge by the court which dwelt unnecessarily on the financial condition of the injured plaintiff, a verdict in the sum of $75,000 was reduced to $45,000. This court reversed the judgment of the Court of Appeals on the ground that it was error to affirm the judgment where it was induced by prejudicial appeals to the sympathy of the jury.
In the instant case, the court included in its charge reference to these medical expenses, which was error because there was no evidence upon which the jury could have found that plaintiff was liable therefor. The testimony by plaintiff as to the financial and physical condition of the husband was submitted to the jury as proof of the liability of the plaintiff for payment of the medical expenses, which testimony was highly prejudicial. Although the Court of Appeals found that the verdict was not the result of passion and prejudice, this court from the record can arrive at no other conclusion but that the verdict for the full amount prayed for must have been influenced by prejudicial pleas to the jury's sympathy; that the remittitur does not correct this situation; and that it is elementary that, in the absence of such testimony, there might have been no verdict for the plaintiff.
Judgment reversed.
WEYGANDT, C.J., HART, ZIMMERMAN, STEWART and TAFT, JJ., concur.
BELL, J., dissents.