Kuehn v. Neugebauer

• Decision Date: 25 April 1918
• Docket Number: (No. 5920.)
• Citation: 204 S.W. 369
• Parties: KUEHN v. NEUGEBAUER.
• Court: Texas Court of Appeals

204 S.W. 369

KUEHN v.NEUGEBAUER.

(No. 5920.)

Court of Civil Appeals of Texas. Austin.

April 25, 1918.

Appeal from District Court, Hays County; Frank S. Roberts, Judge.

Suit by Joseph Neugebauer against Gus Kuehn.Judgment for plaintiff, and defendant appeals.Reversed and remanded.

Will G. Barber, of San Marcos, for appellant.J. P. Pfeiffer, of San Antonio, and T. J. Saunders, of San Marcos, for appellee.

KEY, C. J.

Appellee brought this suit and recovered a verdict and judgment against appellant for $300 damages, alleged to have been caused by the misconduct and negligence of an agent of appellant, who was driving an automobile upon a public road.The proof shows that appellee and a companion were traveling the public road from Austin to San Antonio; that appellant's automobile, which was driven by his minor son, was traveling the same road in the opposite direction, when a collision occurred between the automobile and appellee's motorcycle, which resulted in certain personal injuries to appellee, and some damage to his motorcycle.Appellant has brought the case to this court, and seeks reversal upon several assignments of error.

After testifying concerning his injuries, appellee gave a detailed statement of the expenses he had incurred as doctor's bills, hospital charges, charges for a trained nurse, and for medicines.He also submitted some other testimony tending to show the correctness of the items for which the charges were made, but no witness testified that any of them were reasonable.Appellee also testified that his motorcycle "was all smashed up," and that he had obtained an estimate, showing that it would cost about $100 to repair it.He did not state who furnished the estimate referred to, nor did any witness testify as to how much would be a reasonable amount for repairing the motorcycle.

This being the condition of the testimony, counsel for appellant made timely objections to those paragraphs of the court's charge which submitted to the jury the right to recover for the items of damages referred to, because there was no proof as to the reasonableness of such items; and the same point was made and reason assigned in appellant's motion asking the trial court to set aside the verdict.That court ruled against appellant on the points referred to, and those rulings are assigned as error in this court; and Wheeler v. Railway, 91 Tex. 360, 43 S. W. 876, Railway v. Williams, 136 S. W. 267, Railway v. English, 178 S. W. 667, andRishworth v. Moss, 191 S. W. 851, are cited in support of appellant's contention.

The authorities referred to, and Railway v. Ison, 37 Tex. Civ. App. 219, 83 S. W. 408, cited in appellee's brief, sustain the contention of appellant to the effect that before recovery can be had for expenses incurred by the injured party, as a result of the defendant's wrongful conduct, it must be shown that the amount claimed for such expenses,...