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amount of the physician's bill for services rendered to him, which were made necessary by the negligent act of an intoxicated person, would not prevent including that sum in the damages recoverable by the wife for injury to her means of support.3

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§ 7336. Recovery by Infant.-A minor living with his parents cannot recover medical expenses in an action for personal injuries, unless it appears that they were paid out of funds belonging to the in-. fant, or his liability therefor is clearly shown;33 as the parent is primarily liable and may recover as damages the expenses incurred in an action in his own name. Where a child does not live with his parents, and they have not undertaken to pay any of the expenses resulting from an injury, and all reasonable inferences would show that the infant's estate is liable for the same, an instruction, in an action by such child, by next friend, is proper which authorizes a recovery "for expenses incurred in and about being healed, if any are shown by the evidence."34

§ 7337. Pleading Such Expenses.-On principle supported by good authority, the plaintiff should not be required to specially plead this element of damages, since in cases of severe injury the services of a physician are the natural and uniform effect of the injury, and it would seem superfluous to make this fact the subject of a special allegation. But as we have already seen, the courts are not in entire harmony on this question. In one line of courts it is held necessary to specify particularly the rendition of the services and the amount expended or liability incurred therefor, failing which a recovery of such damages will be refused. In courts where the latter view ob

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Thomas v. Dansby, 74 Mich. 398; s. c. 41 N. W. Rep. 1088.

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Newbury v. Getchell &c. Lumber &c. Co., 100 Iowa 441; s. c. 69 N. W. Rep. 743; Collins v. Le Fevre, 1 Fost. & Fin. 436.

"Burke v. Ellis, 105 Tenn. 702; s. c. 58 S. W. Rep. 855; Bering Man. Co. v. Peterson, 28 Tex. Civ. App. 194; s. c. 67 S. W. Rep. 133.

*Illinois Cent. R. Co. v. Jernigan, 101 Ill. App. 1; s. c. aff'd, 198 Ill. 297; 65 N. E. Rep. 88.

Railroad Co. v. Holcomb, 9 Ind. App. 198; s. c. 36 N. E. Rep. 39; Cooney v. Southern Electric R. Co., 80 Mo. App. 226; s. c. 2 Mo. App. Repr. 646; Hopkins v. Railroad Co., 36 N. H. 9; s. c. 72 Am. Dec. 289; Toledo Elec. R. Co. v. Westenhuber, 12 Ohio C. D. 22; Hawes v. O'Reilly,

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at Western Union Tel. Co. v. Griffith, 111 Ga. 551; s. c. 36 S. E. Rep. 859; Macon v. Paducah St. R. Co., 110 Ky. 680; s. c. 62 S. W. Rep. 496; 23 Ky. L. Rep. 46; Lloyd v. Knadler (Ky.), 22 Ky. L. Rep. 776; s. c. 58 S. W. Rep. 803; Illinois Cent. R. Co. v. Hanberry (Ky.), 23 Ky. L. Rep. 1867; s. c. 66 S. W. Rep. 417; O'Leary v. Rowan, 31 Mo. 117; Railroad Co. v. Richart (Tex. Civ. App.), 27 S. W. Rep. 920;; Mickelson v. New East Tintic R. Co.. 23 Utah 42; s. c. 64 Pac. Rep. 463.

tains, the amount of the damages recoverable on this account cannot exceed the amount alleged in the complaint." 38

ARTICLE VI. RECOVERY BY THIRD PERSON.

SECTION

SECTION

7341. Action by husband for inju- 7343. Where the action is by wife

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§ 7341. Action by Husband for Injuries to Wife. Of course the plaintiff can recover nothing beyond or other than the pecuniary loss entailed, or expenses incurred, as a consequence of the injury. Where the husband sues for injuries to the person of the wife, he can recover only for the loss of her services and the expenses necessarily incurred in her cure;1 and where the injury to the wife is of such a character as to deprive the husband of her society, aid and comfort. damages for this cause will generally be allowed where properly demanded in the complaint. The damages for loss of services of a wife

38 Though petition in action for personal injuries states that plaintiff had been compelled to pay $250 for medicines, he may testify that he had paid $750 on medical bills, defendant merely having the right to have the recovery on that account limited to $250: Galveston &c. R. Co. v. Eckles, 25 Tex. Civ. App. 179; s. c. 60 S. W. Rep. 830.

1 Washington &c. R. Co. v. Hickey, 12 App. Cas. (D. C.) 269; s. c. 26 Wash. L. Rep. 198; Chicago v. Hoy, 75 Ill. 531; Sanford v. Augusta, 32 Me. 536; Furnish v. Missouri Pac. R. Co., 102 Mo. 669; s. c. 15 S. W. Rep. 315; Nielson v. Cedar Co., Neb. s. c. 97 N. W. Rep. 826; Henry v. Klopfer, 147 Pa. St. 178; s. c. 22 Pitts. L. J. (N. S.) 385; 29 W. N. C. (Pa.) 331; 23 Atl. Rep. 337; Gulf &c. R. Co. v. Younger (Tex.), 40 S. W. Rep. 423 (not necessary that services be specially pleaded); Hawkins v. Front Street &c. R. Co., 3 Wash. 592; s. c. 28 Pac. Rep. 1021; Neumeinster v. Dubuque, 47 Iowa 465. A husband suing for damages for injuries occasioned to his wife from a physician's malpractice, may recover for loss of

services necessarily resulting, even though he does not specially claim such: Stone v. Evans, 32 Minn. 243. In an action by a husband for injuries to his wife, evidence of the family physician that in his opinion a surgical operation might become necessary to relieve plaintiff's wife, as to the reasonable charge therefor, and of the expense of nursing in case such operation should be performed, is admissible to show the amount of damages: Indianapolis St. R. Co. v. Robinson, 157 Ind. 414; s. c. 61 N. E. Rep. 936.

2 Indianapolis St. R. Co. v. Robinson, 157 Ind. 414; s. c. 61 N. E. Rep. 936 (recoverable where averments disclose that such would be the result); Brown v. Hannibal &c. R. Co., 31 Mo. App. 661; Furnish v. Missouri Pac. R. Co., 102 Mo. 669; s. c. 15 S. W. Rep. 315 (amount left to sound discretion of jury, since the nature of the subject does not admit of direct proof); Blair v. Chicago &c. R. Co., 89 Mo. 334; s. c. 5 West. Rep. 454 (recoverable though received in consequence of breach of contract with wife); Ainley v. Manhattan R. Co., 47 Hun

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are not confined solely to those rendered in the household, but may, as held in one case, include the value of her services as manager of her husband's business, where she was thus engaged at the time of the injury, though without any contract or expectation of pay for her services. It was held at common law that in an action by the husband and wife conjointly, for injury to the wife, there could be no recovery for loss of services to the husband and for expenses of cure.* Such is still the rule in some of the States, under the statutes." A more liberal interpretation is given to the Maine statute, although perhaps the terms do not justify it. In that State it is held that the plaintiffs may recover such damages in an action by the husband and wife. Such also is the rule in Wisconsin, under a more recent statute."

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$7342. Recovery may Include Both Loss of Service and Diminished Capacity for Labor.-A husband may recover the reasonable value of the time and services lost to him by injuries to his wife, caused by the negligence of the defendant, and if the injuries are permanent may also recover such sum as will be a fair compensation for her future diminished capacity to labor; and the allowance for both elements in the same action does not amount to an award of double damages, as the loss of time refers to time lost prior to the trial, and the diminished capacity refers to future losses in that regard.10

§ 7343. Where the Action is by Wife for Injury, Pending Suit for Divorce. But where the action was brought by a married woman after her divorce from her husband, for an injury which was received before the divorce, while she was living separate and apart from her husband, having been deserted by him, and was supporting herself in

(N. Y.) 206; s. c. 13 N. Y. St. Rep. 557. The substitution of the words, "injured in person or property," in Conn. Gen. Stat., § 2673, for the provision of the former statute that if any person shall receive any bodily injury by reason of a defective bridge or road the town shall pay the person so hurt or wounded just damages, and if any property shall receive any injury or damage the town shall pay such owner just damages, does not entitle the husband to recover for deprivation of the service and society of his wife through injuries from a defective Crosswalk: Lounsbury v. Bridgeport, 66 Conn. 360; s. c. 34 Atl. Rep. 93.

Citizens' Street R. Co. v. Twiname, 121 Ind. 375; s. c. 7 L. R. A. 352; 23 N. E. Rep. 159; 41 Am. & Eng. R. Cas. 227.

Sanford v. Augusta, 32 Me. 536. Kavanaugh v. Janesville, 24 Wis. 618; Whitcomb v. Barre, 37 Vt. 148; Chidsey v. Canton, 17 Conn. 480. * Me. Rev. Stat. 1840, ch. 25, § 89.

'Sanford v. Augusta, 32 Me. 538. 8 Holmes v. Fond du Lac, 42 Wis. 284.

Wis. Stat. 1873, ch. 96.

10 San Antonio &c. R. Co. v. Belt, 24 Tex. Civ. App. 281; s. c. 59 S. W. Rep. 607.

the meanwhile by her own industry, it was held that she was entitled to recover for the loss of her time and for money expended for medical aid during the period of her coverture intervening between the time of the injury and the granting of the divorce.11

§ 7344. Where the Injury is to a Minor Child.—Where the action is by a parent for the injury of a minor child, a corresponding rule obtains. A father or a widowed mother is entitled to the services of a minor child until he attains his majority, and is under legal obligations to furnish such medical attendance, among other necessaries, as he may need until that time. If the child is injured in his person by the negligence of the defendant, in such a way as to diminish the value of such services, and to necessitate medical aid and other attendance, for which the plaintiff is put to expense, recovery can be had for such damages in an action by the parent.12 Of course the parent can recover nothing on account of the child's sufferings, whether physical or mental, nor for his own sympathetic sufferings, lacerated feelings, or disappointed hopes.13 Nor can he recover for anything more than necessary medical and surgical aid. Where a child was wounded by a vicious animal, and a deformity and disfigurement of the face resulted as a consequence, it was held that the father, in an action for loss of service and cost of cure, could recover only for such expense as he had incurred in healing the original wound, and not for any money expended in removing the deformity or disfiguration. The deformity itself would properly be an item in the child's claim for damages.14

§ 7345. Character of Child Sometimes may be Shown.-Evidence of the good morals of the child is clearly inadmissible, though evidence has been admitted, with questionable propriety to the mind of the author, to show that he was obedient, industrious and economical, and that he did not use tobacco or drink, as bearing on his earning capacity and on the issue of the continuance of life."

11 Peru v. French, 55 Ill. 318. 12 Matthews v. Missouri &c. R. Co., 26 Mo. App. 75; Meade v. Chicago &c. R. Co., 72 Mo. App. 61; Schmitz v. St.Louis &c. R. Co., 46 Mo. App. 380 (no deduction should be made for cost of child's support); Buck v. People's &c. Co., 46 Mo. App. 555; s. c. aff'd, 108 Mo. 179; 18 S. W. Rep. 1090; Missouri &c. R. Co. v. Rodgers (Tex. Civ. App.), 1 Am.

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§ 7348. Discretion of the Court in Setting Aside Verdicts for Excessiveness or Inadequacy. The quantum of damages to be allowed in an action of tort is a matter peculiarly within the province of the jury, and especially is this the case with personal injuries where the law fixes no precise rule of damages. It is for them to say, in view of all the facts produced in evidence before them, how much the plaintiff is entitled to recover as a compensation for the injury which he has suffered, if the damages are to be compensatory alone; and if the case justifies exemplary damages, it is their province to say what sum is justified by the circumstances, and should be assessed as a punishment of the wrong, with a view of deterring others from the commission of like offenses. But an uncontrolled discretion is not vested in them in regard to this matter. By a wise provision of the law, the courts may set aside the verdict and order a new trial when verdicts are against the evidence, or are the result of passion and prejudice, or are so inadequate or so excessive in amount as to justify the inference that the jury were influenced by passion or prejudice

1Clare v. Sacramento Electric &c. Co., 122 Cal. 504; s. c. 5 Am. Neg. Rep. 115; 55 Pac. Rep. 326; McLean V. Lewiston, 8 Idaho 472; s. c. 69

Pac. Rep. 478; East St. Louis &c.
R. Co. v. Frazier, 26 Ill. App. 437;
St. Louis &c. R. Co. v. Berry (Tex.
Civ. App.), 15 S. W. Rep. 48.

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