White v. Thorington

• Decision Date: 17 January 1929
• Docket Number: 3 Div. 873.
• Citation: 219 Ala. 101,120 So. 914
• Parties: WHITE v THORINGTON.
• Court: Alabama Supreme Court

120 So. 914

219 Ala. 101

WHITE v THORINGTON.

3 Div. 873.

Supreme Court of Alabama

January 17, 1929

Rehearing Denied March 28, 1929.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages by Margaret Thorington against H. Paul White. From a judgment for plaintiff, defendant appeals. Reversed and remanded conditionally.

Ball &amp Ball, of Montgomery, for appellant.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

ANDERSON C.J.

The complaint, among other things, charges that the plaintiff "was put and continues to be put to great expense in the employment of doctors and nurses and the paying of hospital bills, and the buying of medicines; for all of which she claims damages as aforesaid." We see nothing so vague and indefinite about this averment as would subject it to the defendant's eighth ground of demurrer, even if the question could be so raised, as a motion to strike, an objection to the evidence or special charges seems to be the proper method of eradicating nonrecoverable damages. Cassells' Mill v. Strater Bros. Grain Co., 166 Ala. 274, 51 So. 969; Michie's Digest, p. 668, § 122.

Dr. Blue had testified as to the nature and character of an operation that could perhaps improve or relieve the wounded arm to some extent, and the plaintiff had the right to prove the reasonable cost of such an operation, and the complaint was not only broad enough but explicit enough to cover the cost of same as an element of recoverable damages. Moreover, the witness did not answer as to any fixed amount, merely stated that it was a most difficult and long drawn out operation and treatment and would be very expensive, and no complaint is made as to the answer, as no motion was made to exclude same.

It is no doubt true that a plaintiff cannot recover for medical expense unless the same has been paid or she is liable for same, but the jury could have inferred a legal obligation on the plaintiff to reimburse her father the sums he had paid out in her behalf. She was an adult and offered to reimburse him, and his declination was not absolute, and the jury could infer that he expected reimbursement under certain conditions. 41 C.J. p. 19, § 13.

We do not think the trial court abused its discretion in permitting the jury to view the place of the injury, and the record discloses no occurrence or circumstance that would call for placing the trial court in error in this respect. Morris v. Corona Coal Co., 215 Ala. 47, 109 So. 278.

There was no error in refusing the defendant's requested charge D-20. True, the doctrine of stopping and looking and listening as applicable to those crossing railroad tracks may not apply to this defendant, but the charge under consideration relieved the defendant of any duty to stop, or to look or to listen--to neglect all. We do not think a driver at the intersection of a street would be permitted by the law to close his eyes or to fail to keep a lookout for other vehicles or pedestrians. Ivy v. Marx, 205 Ala. 60, 87 So. 813 14 A. L. R. 1173.

Nor was there error in refusing defendant's requested charge D-21. We cannot say, as matter of law, that the defendant was under no duty to blow his horn at the intersection of the streets under the circumstances disclosed. True, this collision occurred a few days before the adoption of the Highway Code (Act No. 347 of 1927), but ordinary care may have placed this duty upon him, independent of the Highway Code. Reaves v. Maybank, 193 Ala. 614, 69 So. 137.

The next insistence is that the defendant was entitled to the general charge under its pleas of contributory negligence. The defendant not only failed to prove the...