Baldwin v. Kansas City Rys. Co.

• Decision Date: 17 February 1920
• Docket Number: No. 13265.,13265.
• Citation: 218 S.W. 955
• Parties: BALDWIN v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

218 S.W. 955

BALDWIN v. KANSAS CITY RYS. CO.

No. 13265.

Kansas City Court of Appeals. Missouri.

Rehearing Denied January 26, 1920.

February 17, 1920.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Joshua Baldwin against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals.

Reversed and remanded.

Clyde Taylor, of Kansas City, and L. T. Dryden, of Independence, for appellant.

House, Manard, Allen & Johnson, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff's cause of action rests upon the charge that on the 20th of June, 1915, at Nineteenth and Wyoming streets, in Kansas City, when one of defendant's street cars stopped at the usual place to let off and take on passengers, he took hold of the "handhold" at the rear of the car, placed his foot on the car step, and while in the act of getting on the car it was suddenly started, throwing him to the pavement, whereby his hip was fractured and other injuries were inflicted upon him. The trial resulted in a verdict and judgment for $3,000, and defendant has appealed.

Plaintiff's instruction on the measure of damages authorized the jury to assess his damages at such sum as they believed from the evidence would be a reasonable compensation for his injuries, pain, and mental anguish, and for "necessary expenses, if any, paid or incurred by plaintiff for medical attention, nursing, or drugs, because of injuries, if any, received by him." It is urged that this instruction is erroneous because it includes the item of nursing when there is no evidence that plaintiff expended or became liable for any sums for nursing.

The record discloses that plaintiff's right hip was fractured, the neck of the femur being broken in such a manner that it was rammed into the greater trochanter, that he was taken to the City Hospital, where he remained for six days, and then was removed to his daughter's home, where he was in bed for three months unable to help himself, and after that he would be placed in a chair and rolled into the other rooms or out on the porch. While he was in the City Hospital a lady attendant there bathed his shoulder, hip, and back every day with alcohol and a man attendant waited on him in bed. There was no evidence that he paid any hospital fees, and manifestly those who waited on him there were the regular employés of that institution. Nor is there any evidence that he paid out anything for medical attention, nursing, or drugs except $5 to the doctor and 30 cents a half pint for the alcohol he used for his daily rub during the three months he was in bed and for which he would send his son who bought it. We need not go so far as to say he, incurred no expense for nursing while at the hospital, though it is manifest from the record in other places that he did not pay, and was not required to pay, for the services there rendered.

It is also clear from the record that the care and attention he received while in his daughter's home (which he in one place calls his home, and which another daughter refers to as "our house") was not the nursing of strangers or those in whose favor there would be an implied legal obligation to Pay for services rendered, but was the care and attention bestowed upon him by his daughters and other children. Respondent claims that the record discloses that not all of these services were rendered by his daughters, but that, since one of them during her cross-examination remarked that while she slept "the other folks" were up and with him when she was not, this shows that some of this nursing was done by others who were not relatives and to whom he would incur a legal obligation in the absence of an express contract. We think, however, that the phrase "the other folks" in the connection in which it is used would more naturally refer to other members of the family rather than to outsiders who would be there either expressly or impliedly as servants entitled to pay for what they did. There was no evidence of any express agreement to pay the daughters and other children for their services, and in the absence of such contract the nursing done by the daughters is presumed to be rendered gratuitously.

In Gibney v. St. Louis Transit Co., 204 Mo. 704, loc. cit. 722, 103 S. W. 43. 48, the Supreme Court said:

"Plaintiff's instruction No. 5 is criticized upon several grounds, only one of which, the third, will it be necessary to notice. By this instruction the plaintiff was allowed to recover by way of damages `any expenses necessarily incurred for nursing.' The only persons who attended plaintiff as nurses were her daughters, members of her family. There was no express contract to pay them for their services, and defendant contends that the services are presumed to have been rendered gratuitously. As a rule such services involve no legal liability upon the part of the persons for whom rendered, and therefore afford no basis for a claim. In Voorhees on Damages for Personal Injuries, § 18, it is said: The injured person cannot recover as expenses the value of the services of any one of his family in nursing him, unless there was an express agreement by him to pay therefor. Such nursing involves no legal liability on his part, and therefore affords no basis for a claim against the defendant, as for expenses paid. In the absence of an express contract, the law will not presume one, so long as the family relation continues. An injured person may hire an adult member of his family to nurse him, or to prescribe for him as a physician, in the same manner and with like effect that he may hire a...