Bartlett v. Vanover

• Decision Date: 22 October 1935
• Citation: 260 Ky. 839,86 S.W.2d 1020
• Parties: BARTLETT v. VANOVER.
• Court: Kentucky Court of Appeals

86 S.W.2d 1020

260 Ky. 839

BARTLETT v. VANOVER.

Court of Appeals of Kentucky

October 22, 1935

Appeal from Circuit Court, Daviess County.

Action by E. R. Vanover against M. G. Bartlett. From a judgment for plaintiff, defendant appeals.

Affirmed.

Louis I. Igleheart, of Owensboro, for appellant.

H. A Birkhead, Beckham A. Robertson, and Lee Gibson, all of Owensboro, for appellee.

CREAL Commissioner.

In April, 1932, M. G. Bartlett shot and seriously injured his stepfather, E. R. Vanover. The latter instituted this action alleging that the shooting was wrongfully, maliciously, and intentionally done; that by reason thereof he had been permanently injured, and disabled from performing manual labor; that he had suffered and still suffered great mental and physical pain and anguish and was damaged in the sum of $1,000; that by reason of his injuries he had incurred expenses in the sum of $250 for physician's services $302 for hospital and nurses' services, and $20 for medicine, for all of which he prayed judgment.

In addition to a general denial of the allegations of the petition, defendant affirmatively pleaded that the shooting was done in the necessary defense of himself and his mother and that no more force was used than was necessary to repel the assault being made upon them by plaintiff.

On trial of the issues made by a reply traversing the affirmative allegations of the answer, the jury returned a verdict in favor of plaintiff for the sum of $1,037, and from a judgment in conformity with such verdict defendant is appealing.

As grounds for reversal it is argued: (1) That the court committed prejudicial error in instructing the jury; (2) that the court erred to the prejudice of appellant's substantial rights in permitting appellee, over objections of appellant, to introduce incompetent evidence.

Instruction 3 is criticized because it authorized a finding for appellee for hospital and nurses' services not to exceed the sum of $302. This item of damage is properly pleaded in the petition, but it is insisted by counsel that it was not sustained by the evidence and that this feature of the instruction should have been omitted because it is shown by the evidence that appellee's wife, the mother of appellant, paid the hospital and nurses' bill. Concerning this item of alleged damage, appellee testified that he paid $302 in hospital bills besides $25 paid by his wife for the first week. His further evidence might be construed as indicating that his wife paid the $302 hospital bill but his statements concerning the matter are not clear. In actions of this character recovery may be had for amounts shown to have been expended or incurred for hospital bills, medical treatment, etc., provided such damages are properly pleaded. Williams v. Capital Mining, Lumber & Oil Co., 152 Ky. 47, 153 S.W. 43. The word "incurred," as used in pleadings or instructions regarding medical expense, etc paid out or incurred, means to become liable for. Flanagan v. Baltimore & O. R. Co., 83 Iowa 639, 50 N.W. 60; Weinberg Co. v. Heller, 73 Cal.App. 769 239 P. 358; 4 Words and Phrases, First Series, p. 3527; 4 Words and Phrases, Third Series, p. 207. While, as already indicated, appellee's evidence concerning the item of damage in question is somewhat conflicting, it is apparent that he did not mean to convey the idea that his wife paid the $302 for hospital and nurses' services. However, granting that she did, it is pleaded and proven without contradiction that appellee incurred the liability either to the hospital or to another. Without going into detail,...