Golder v. Lund
| Decision Date | 03 March 1897 |
| Docket Number | 7110 |
| Citation | 70 N.W. 379,50 Neb. 867 |
| Parties | JAMES GOLDER v. JOHN LUND |
| Court | Nebraska Supreme Court |
ERROR from the district court of Dodge county. Tried below before MARSHALL, J. Affirmed.
AFFIRMED.
Frick & Dolezal, for plaintiff in error.
J. C Crawford and A. H. Briggs, contra.
Lund sued Golder for assault and battery. The defenses interposed were a denial of the assault, self-defense, and certain averments by way of mitigation of damages. There was a verdict and judgment for the plaintiff for $ 1,500, which the defendant seeks to reverse.
Certain assignments of error are waived in the brief. Of those insisted upon, two relate to the admission of evidence with regard to the expenses of medical attendance in the treatment of plaintiff for the injuries alleged to have been inflicted upon him. The plaintiff, after narrating the circumstances and consequences of the alleged beating, testified that he called Dr. Bartlett to treat his wounds; that he was confined to bed for six weeks and required constant nursing. He was then asked this question: "What amount of money did you expend in employing physicians, or physician and medicine together?" This was objected to, the objection overruled, and an exception taken. Aside from other grounds of objection, which apply to another assignment of error and which will be noticed later, it is urged that this question permitted a recovery for any sum the plaintiff might have seen fit to expend. It is true that the measure of recovery for such expenses is not the sum actually expended, but is confined to the reasonable expense. (Hewitt v Eisenbart, 36 Neb. 794, 55 N.W. 252; City of Friend v. Ingersoll, 39 Neb. 717, 58 N.W. 281.) In the cases cited, however, the evidence of actual expenses was not coupled with evidence that such expenses were reasonably incurred, and verdicts based solely on the evidence of actual expenditure were held bad for that reason. The rule whereby such expenditures are recovered is based upon the doctrine of avoidable consequences. It is the duty of the person injured to exercise reasonable precautions in order to render the injury as slight as possible. Failing to perform that duty, he cannot recover for consequences which might thereby have been avoided; therefore he is entitled to to recover the expenses reasonably by him incurred by reason of such precautions. As held in the cases cited, he may not recover his actual expense, regardless of its reasonableness. On the other hand, he cannot speculate on this item of damages and recover what would be a reasonable expense unless he has in fact incurred it, either by payment or by becoming liable therefor. In cases of personal injuries, in order to recover for medical attendance and similar items, it is necessary, therefore, for the plaintiff to show two facts: First, what expense he actually incurred; and secondly, that it was reasonably incurred. It is not the reasonable charge for medical services which he may recover, but the expense to him of such services, not to exceed their reasonable value. It was, therefore, proper for the plaintiff to show what expense he had actually incurred, and in this case this evidence was followed by proof of what was reasonably incurred, so the case does not fall within the rule of either of the cases above referred to.
Dr Bartlett, after testifying that he was a practicing physician in Dodge county, and had been such for three years, and that he had rendered professional services to the plaintiff in the treatment of his injuries, was asked: "What are your charges for attending the plaintiff during that sickness?" This was objected to as incompetent, irrelevant, and immaterial, and because no proper foundation had been laid for the question. The objection was overruled. In support of this objection it is urged that there was no evidence that Dr. Bartlett had complied with the provisions of chapter 55, Compiled Statutes, with regard to the practice of medicine; that he was, therefore, not shown to be qualified to testify as an expert in regard to the value of his services, and further, that section 15 of that chapter providing that no person who has not complied with the provisions of that act may recover for medical services, and the plaintiff not having at the time of the trial paid the bill, it was not shown that any expense had been incurred for which the plaintiff was legally liable. The first part of the argument does not meet the question, which does not relate to the value of the services, but to the actual charge therefor. The objection would apply, however, to the following question, which related to the reasonableness of the charge, and which was also properly objected to. A consideration of the second reason, however, argumentatively disposes of this question, although we do not wish to be understood as holding that in order to qualify a person learned in the profession to testify as an expert he must necessarily be qualified under the act to practice medicine in this state. It is true that the act in section 15 does in express terms prohibit a recovery for medical services rendered by a person not licensed to practice under the act. (Maxwell v. Swigart, 48 Neb. 789, 67 N.W. 789.) But it does not follow that in all proceedings the burden is upon the party asserting the professional character of the physician to prove by the record his license to practice. It has been said that (State v. Crowell, 25 Me. 171; Brown v. Young, 2 B. Mon. 26.) The authorities are generally to the effect that in a prosecution for carrying on a trade or profession without a license the burden is on the defendant to prove the license, but only because it is a fact peculiarly within his own knowledge, and one susceptible of very ready proof by him, while the contrary...
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