1

63

annuity the measure of the damages.” 1 In determining this item of compensation, the profits of a future business of which the plaintiff has been deprived, are in general too remote as an element in the estimate of the damages, although it has been said that he is entitled to recover for the diminution of the receipts of his business, resulting from such inability to attend to it, as the injury caused him. (*) This latter point is distinctly held in Hanover R.R. Co. v. Coyle. (1) The plaintiff in that case was a peddler, and on the trial below, offered to prove the nature and character of his business, the extent of his loss of time, also of the percentage on the goods sold by him in his usual course of business, the loss of interest of money received for the same, in consequence of the injuries received, and the annual amount of sales made by him. The evidence was admitted against the objection of the defendant, who excepted. On error it was held by the Supreme Court that the evidence had been correctly admitted as bearing directly upon the question of damages, in affording a means of computing the plaintiff's loss for the time he was confined by his injuries, and prevented from carrying on his business. (©) When damages are claimed for loss of business, and no proof is offered of the value of the business, no damages on that account can be given.(") In assault and battery, the plaintiff can recover the expense of hiring labor while unable to perform work which he, when well, performed himself, (*) but the expenses of living cannot be

Rapson v. Cubitt, 1 Car. & Marsh. 64.

(*) Kinney v. Crocker, 18 Wis. 74.

(1) 55 Pa. 396.

(*) See this question discussed fully, § 180.

(4) Klein v. Second Avenue R.R. Co., 54 N. Y. Super. Ct. 164.

(*) Ashcraft v. Chapman, 38 Conn. 230.

included in the damages in addition to the value of the plaintiff's time.(*)

§ 483. Medical expenses.-The medical expenses, including the cost of medicine and nursing, may always be recovered. () The plaintiff may recover, as part of his damages, the amount of a surgeon's bill which he incurred for treating his injuries, although, before the trial, the bill had been voluntarily paid by the trustees of the township, to whom he was under no legal liability to refund the amount.() He may recover them, although they are yet unpaid, (d) and he may recover compensation for the services of a daughter in nursing him, though the services were rendered gratuitously. () The amount

reasonably paid for going to a distant city for special medical treatment may be recovered. (') Medical expenses may be recovered, though not specially named in the declaration.(") But it is not enough to show the amount paid for medical expenses; it must also appear that the amount is a reasonable one.(1)

484. Mental and physical suffering.-Future suffering is to be considered. (*) Where a surgeon is sued for malpractice compensation is not to be recovered for the whole amount of suffering, but only such additional

(*) Graeber v. Derwin, 43 Cal. 495.

() See, in addition to the authorities cited in § 481, the following: Beardsley v. Swann, 4 McLean 333; Metcalf v. Baker, 57 N. Y. 662; Sheehan v. Edgar, 58 N. Y. 631.

(c) Klein v. Thompson, 19 Oh. St. 569.

(4) Lunsford v. Walker, 8 So. Rep. 386 (Ala.); Donnelly v. Hufschmidt, 79 Cal. 74.

(*) Varnham v. Council Bluffs, 52 Ia. 698.

(Sherwood v. Chicago & W. M. Ry. Co., 46 N. W. Rep. 773 (Mich.). (*) Folsom v. Underhill, 36 Vt. 580.

(1) Gumb v. Twenty-third St. Ry. Co., 114 N. Y. 411.

() Fry v. Dubuque & S. W. R.R. Co., 45 Ia. 416; Aaron v. Second Ave. R.R. Co., 2 Daly 127; Stewart v. Ripon, 38 Wis. 584.

§ 485.

LOSS OF CAPACITY TO LABOR.

65

Where a

suffering as was caused by the malpractice.(*) man who was suffering from hernia was wrongfully expelled from a railroad train, it was held that the fact of his hernia might be shown, though no aggravation of his injury was proved; for it tended to show increased mental suffering. (b) Thomas, J., said:

"The conductor put the plaintiff in fear by compelling him to accept the alternative of jumping from the platform or being pushed off in the dark, while the train was moving very fast, as it appeared to the plaintiff, and his fear must naturally have been greatly intensified by reason of his physical condition, and it was proper to put the jury in possession of all the facts relating to his physical condition, for the purpose of ascertaining the extent of his mental suffering as an element of damage."

$485. Loss of capacity to labor.-Compensation should be given for permanent disability or loss of capacity for labor.() And in ascertaining the proper amount in case

(*) Wenger v. Calder, 78 Ill. 275.

() Fell v. Northern P. R.R. Co., 44 Fed. Rep. 248.

() Phillips v. Southwestern Ry. Co., 4 Q. B. D. 406; Fair v. London & N. W. Ry. Co., 21 L. T. Rep. 326; Vicksburg & M. R.R. Co. v. Putnam, 118 U. S. 545; Potts v. Chicago C. Ry. Co., 33 Fed. Rep. 610; Campbell v. Pullman P. C. Co., 42 Fed. Rep. 484; South & N. A. R.R. Co. v. McLendon, 63 Ala. 266; Cameron v. Vandegriff, 13 S. W. Rep. 1092 (Ark.); Wallace v. Wilmington & N. R.R. Co., 18 Atl. Rep. 818 (Del.); Frink v. Schroyer, 18 Ill. 416; Pierce v. Millay, 44 Ill. 189; Chicago v. Langlass, 52 III. 256; 66 III. 361; Toledo, W. & W. Ry. Co. v. Baddeley, 54 Ill. 19; Chicago & A. R.R. Co. v. Wilson, 63 Ill. 167; Chicago v. Jones, 66 Ill. 349; Chicago v. Elzeman, 71 Ill. 131; Sheridan v. Hibbard, 119 Ill. 307; Indianapolis v. Gaston, 58 Ind. 224; McKinley v. Chicago & N. W. Ry. Co., 44 la. 314; Morris v. Chicago, B. & Q. R.R. Co., 45 Ia. 29; Stafford v. Oskaloosa, 64 Ia. 251; Knapp v. Sioux City & P. Ry. Co., 71 Ia. 41; Tefft v. Wilcox, 6 Kas. 46; Kansas P. Ry. Co. v. Pointer, 9 Kas. 620; Missouri, K. & T. Ry. Co. v. Weaver, 16 Kas. 456 (semble); Central P. Ry. Co. v. Kuhn, 86 Ky. 578; Donnell v. Sandford, 11 La. Ann. 645; Blackman v. Gardiner & P. Bridge, 75 Me. 214; McMahon v. Northern C. Ry. Co., 39 Md. 438; Memphis & C. R.R. Co. v. Whitfield, 44 Miss. 466; Whalen v. St. Louis, K. C. & N. Ry. Co., 60 Mo. 323; Ridenhour v. Kansas City C. Ry. Co., 13 S. W. Rep. 889 (Mo.); Steiner v. Moran, 2 Mo. App. 47; Chicago, B. & Q. R.R.

VOL. II.-5

of disability, the jury may take into consideration the nature of the plaintiff's previous occupation,(*) and the kind and amount of physical and mental labor to which he has been accustomed. () In Fulsome v. Concord, (c) it was held correct to instruct the jury that in estimating the plaintiff's prospective damages they should reduce his losses to their present worth, or to such a sum as, being put at interest, would amount to the sum they found the plaintiff would lose in the future, by the injuries. In Texas it has been said that in actions for personal injury where the basis of damages is the reduced capacity to earn money, it is error to instruct the jury to give the plaintiff a sum which put at interest will produce annually a sum equal to the difference between what he could earn before and after the injury. They should be instructed to give an amount which would purchase an annuity equal to the difference during the probable life of the plaintiff, calculated upon a reliable estimate of the average duration of human life.(d) In estimating this amount, life tables may be used. (*) Evidence of the plaintiff's habitual drunkenness, incapacitatCo. v. Starmer, 26 Neb. 630; Cohen v. Eureka & P. R.R. Co., 14 Nev. 376 ; Holyoke v. Grand T. Ry. Co., 48 N. H. 541; Filer v. New York C. R.R. Co., 49 N. Y. 42; Oliver v. North P. T. Co., 3 Ore. 84; Pennsylvania & O. C. Co. v. Graham, 63 Pa. 290; Pittsburg, A. & M. P. Ry. Co. v. Donahue, 70 Pa. 119; Scott v. Montgomery, 95 Pa. 444; Houston & T. C. R.R. Co. v. Willie, 53 Tex. 318; Houston & T. C. Ry. Co. v. Boehm, 57 Tex. 152; Giblin v. McIntyre, 2 Utah 384; Weisenberg v. Appleton, 26 Wis. 56; Goodno v. Oshkosh, 28 Wis. 300; Hulehan v. Green Bay, W. & S. P. R.R. Co., 68 Wis. 520; King v. Oshkosh, 75 Wis. 517.

(*) Nebraska City v. Campbell, 2 Black 590; Moore v. Central R.R., 47 Ia. 688; Caldwell v. Murphy, 11 N. Y. 416; Nones v. Northouse, 46 Vt. 587 ; Ripon v. Bittel, 30 Wis. 614.

(") Ballou v. Farnum, 11 All. 73.

(c) 46 Vt. 135.

(4) Houston & T. C. R. R. Co. v. Willie, 53 Tex. 318.

() Vicksburg & M. R.R. Co. v. Putnam, 118 U. S. 545; Knapp v. Sioux City & P. Ry. Co., 71 Ia. 41.

§ 486.

ACTION BY MARRIED WOMAN OR MINOR.

67

ing him for labor, is proper in reference to the amount of the compensatory damages he should receive for a permanent disability. (") Damages for permanent deformity, resulting from an injury, may be allowed, but not the expenses of surgical operations undertaken after the wound is healed, for the purpose of removing the blemish.(*)

$486. Action by married woman or minor.-Where the suit is by a married woman, her loss of time is no part of the injury for which compensation can be given. Her time and service belong to the husband, and for a loss of them he must sue alone. (©) And for the same reason she cannot recover the amount of medical expenses, unless actually paid out of her separate estate. (") She may recover compensation for her pain and suffering,() and it is held that she may recover for permanent impairment of her earning capacity.(') In New York she is allowed

(*) Cleveland & P. R.R. Co. v. Sutherland, 19 Oh. St. 151. () The Oriflamme, 3 Sawy. 397; Karr v. Parks, 44 Cal. 46.

(*) Ohio & M. Ry. Co. v. Cosby, 107 Ind. 32; Thomas v. Brooklyn, 58 Ia. 438; Jordan v. Middlesex R.R. Co., 138 Mass. 425; Klein v. Jewett, 26 N. J. Eq. 474; Barnes v. Martin, 15 Wis. 240. Therefore it is error to instruct the jury that the damages under statutes giving an action for causing death, are the same in the case of a married and an unmarried woman. An unmarried woman is entitled to her whole earnings. The time of a married woman is not exclusively her own, but a portion of it must be devoted to the care of the family and aiding her husband. Stulmuller v. Cloughly, 58 Ia. 738.

(4) Tompkins v. West, 56 Conn. 478; Lewis v. Atlanta, 77 Ga. 756; Ohio & M. Ry. Co. v. Cosby, 107 Ind. 32; Jordan v. Middlesex R.R. Co., 138 Mass. 425; Klein v. Jewett, 26 N. J. Eq. 474; Burnham v. Webster, 54 N. Y. Super. Ct. 30.

(*) Green v. Pennsylvania R.R. Co., 36 Fed. Rep. 66; Tompkins v. West, 56 Conn. 478; Johnson v. Baltimore & P. R.R. Co., 17 D. C. (6 Mack.) 232; Ohio & M. Ry. Co. v. Cosby, 107 Ind. 32; Jordan v. Middlesex R.R. Co.,138 Mass. 425; Klein v. Jewett, 26 N. J. Eq. 474.

() Ohio & M. Ry. Co. v. Cosby, 107 Ind. 32; Jordan v. Middlesex R.R. Co., 138 Mass. 425.