Birmingham Ry., Light & Power Co. v. Humphries

• Decision Date: 02 February 1911
• Citation: 172 Ala. 495,55 So. 307
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. HUMPHRIES.
• Court: Alabama Supreme Court

55 So. 307

172 Ala. 495

BIRMINGHAM RY., LIGHT & POWER CO. v. HUMPHRIES.

Supreme Court of Alabama

February 2, 1911

Rehearing Denied May 5, 1911.

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by W. L. Humphries against the Birmingham Railway, Light &amp Power Company for injuries to his wife. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Dowdell C.J., and Mayfield, J., dissenting in part.

The objections to testimony sufficiently appear in the opinion. The following charges were refused to the defendant "(2) If you believe the evidence, you cannot award plaintiff any damages for services rendered by Miss Sarah Vines. (3) If you believe the evidence, you cannot award the defendant any damages for services rendered to his wife by Miss Laura Rickels after his wife's return from Talladega."

Tillman Bradley & Morrow and L. C. Leadbeater, for appellant.

Bowman, Harsh & Beddow, for appellee.

SIMPSON J.

This action is by the appellee against the appellant for injuries to the wife of the plaintiff, claimed to have been received while she was a passenger on the electric car of defendant.

The plaintiff, being on the stand as a witness, testified that he had employed Dr. Pressley, who attended his wife, but that he had not yet paid him. He was asked: "What was his bill, if you know?" To this question the defendant objected, and the objection was overruled, and the defendant excepted. There was no error in this ruling. While it is true that the defendant is not liable for any more than the reasonable value of the services of a physician, yet neither is it liable for any more than has actually been paid or is due. So it is necessary to prove both, and both cannot be proved at once. The natural order is to prove what the charge is, and then prove whether or not it is reasonable. Mr. Sutherland, in his work on Damages, states that proof of the sum paid is some evidence of the value of the services rendered. 3 Suth. on Dam. (2d Ed.) p. 2674, § 1250. The remarks in the case of Birmingham Railway, Light & Power Co. v. Girod, 164 Ala. 10, 51 So. 245, second column, cannot bear the interpretation that it was improper to admit such proof before the value of the services were proven; for the opinion immediately states that "it was certainly proper for the jury to consider it, in connection with all other evidence, in determining what was the reasonable value or cost of such items." 164 Ala. 21, 51 So. 246.

In the case of Central of Georgia Railway Company v. McNab, 150 Ala. 340, 43 So. 222, this court said that it was proper to prove the reasonable value of the physician's services; "but, to authorize recovery under the averments of the complaint, it would be necessary that such reasonable sums were expended." For like reasons, there was no error in overruling the objection to the question to the witness Humphries: "How much did you pay?"

The court did not err in refusing to give charge 3, requested by the defendant. The appellant's brief states the rule correctly that, "no matter how reasonable an amount might be, as compensation for services, yet, unless plaintiff paid or became liable therefor, he could not recover that item. * * * In other words, two things must concur, viz., reasonableness and payment, or liability to pay."

Miss Laura Rickels testifies that she did part of the housework while she was at plaintiff's house; that she charged him for it, and he paid her "along," she does not know exactly how much, but as much as $5; that "he has not agreed to pay me any more"; that she has not made any charges for nursing his wife; that he gave her some money, the amount not remembered, and she supposes he gave it for what she did out there.

The plaintiff testifies that her "sisters" stayed there and did the principal part of the work while she was sick. Her sister had to quit her other work, and she stayed there and did the work. "I paid her something for her services. We didn't have any stipulated agreement of any kind as to what I was to pay her. I told her when she came there I would pay her along whatever was right, and when she would need any money she would call on me, and I would let her have some occasionally. Sometimes she would want $1, $2, or $5, anything like that. I gave her that on account of her staying there and waiting on my wife and doing the work. I could not say just the amount I gave her in all--I suppose some $25 or $30, something like that. That is not payment in full for what she has done there."

Mrs. Humphries testifies that her sister practically stopped her other work to wait on her and do her housework; that her husband has paid her some, but still owes her for doing work at the house; that the reasonable cost for the hiring of a person to do the work which she had done would be $20 or $25; also that Laura Rickels has been at her house several months, has had no other work to do besides what she has been doing at plaintiff's house, and has been with her.

While this evidence is by no means as clear and definite as it should be, as to what was the reasonable value of the work done by Laura Rickels, nor as to what she did do, as sometimes the witness refers merely to "sisters," and sometimes to "sister," without stating which one, yet the testimony of plaintiff shows that he paid Laura Rickels $25 or $30 for her services, and there is enough testimony from which the jury could infer whether or not that was reasonable, and under the...