Lucas Circuit Court.

We are askou to reverse that judgment on account of error in admitting certais. testimony, and of error of the court in its charge to the jury and because the damages are excessive.

The testimony complained of and the charge of the court to the jury relates to the right of the plaintiff to recover expenses incurred by her for employing physicians. Two witnesses were cailed who testified that they treated her during her illness. The first was Dr. Henzler, who was called at the tim of her injury and treated aer more or less from that time or for a while; and in February, 1825, Dr. Coldham was called, who treated me along until the time of the trial. Dr. Coldham was asked, when he was on the stand, how much his bill was for treating the plaintifi. The court instructed him that he could answer as to the amount of his bill inca.red in treating her for the injury, but must not include with it any part of hi for time spent in making an examination of her ir order to testify in the case as a witness. He thereupon replied that he did not know exactly what it was; that he could tell by going to his nice and looking at his books; but he wound up his testimony with the statement that his bill was about $35. Dr. Henzler testified so to visiting the plaintiff and his treatment of her at various times, in the same manner that Dr. Coldham had testified. When asked about is oi, he didn't know. After three or four questions put to him, ne hot ht probably he had rendered a bill at one time of $66, and probably then had been incurred since that time about $30 mor; and he concludes, after the examination had proceeded at some length, that his bil mast be about $95.

The court charged the jury upon that subject, that plaintif "is entitled to recover for any expense that she may have been to, as shown by the evidence in the case, for medical services or attendance, in endeavi ing to cure herself of the injuries which she has sustained."

It is claimed that the evidence was not competent, because there was no allegation in the petition. The allegation upon that subject In the petition is that she "has been put to an expense of —— delars (there is a blank preceding the word "doilars", for medical attendante in attempting to be cured of her said injuries, to her damage of $5,000.”

We think that the rule is clear, that plaintiff may recover what she has exponded, and what she may reasonably expect to expend, in order to cure herself an injury that has been received through the fault or negligence of te defendant. And I may as well say at this point, that we think the allegation in the petition is barely sufficient to admit that kind of evidence. It is an allegation that she has been put to an expense in procusing medical attendance to cure herself; and we are not yet prepared to hold, and will not, until it has been settled to be the law, that it is necessary to allege the amount with definiteness, in the absence of .. motion to make the petition more definite and certain. Of course the defendant, when the petition was filed, could have come into court and have taken advantage of that allegation, as it could have of any other that was indefinite, by a motion to make it more definite and certain. It is quite likely the court would have sustained that kind of a motion, and directed the plain to allege what her actual expenses were up to the time of the filing of the petition; but in the absence of that motion, we think that aleation was sufficient to admit this evidence. This evidence is neither very bear, certais, no definite, bu i is some evidence tonding to show the neonysicians nad rendered services of value, and that they had a value, that that value, as nearly as the physicians were

Street Railway Co. v. Tucker.

able to state it, either from their recollection of the amount of the services or from what they remembered as to the amount of the different bills, was in the one case, $35, and in the other, $95. That was some evidence to go to the jury on that point. The court charged the jury that they night allow for them such an amount as they should find from the evidence in the case had been expended by her, or for which a liability had been incurred by her.

I refer to a case or two on that subject, but in the first place to a book that happens to be here-Jones on "Negligence of Municipal Corporations," pages 499 and 500-where it is stated in the text that

"All reasonable expenses will be allowed as incidental to the cure of the plaintiff, which were incurred by him for the purpose of regaining his health. The amount paid physicians and nurses, and the amount which it is reasonable to conclude will have to be paid in the future, if the injury is of a permanent character, may all be proved, and may be recovered from the defendant."

It will be noticed that this author states that this kind of a recovery is incidental to the action. It is not a main feature of the cause of action. In the second place, that it may be recoved for the future. And it must have occurred to us all that it would be problematic, to a certain degree, as the witness could only give guess, or form an opinion from the present condition of the plaintiff, as to what would have to be expended in the future. Yet the courts hold that the jury may give damages for medical services still to be rendered, so they may undoubtedly give judgment on account of those which have already been rendered. This author cites as authority, 73 Ia., 241; Sedgwick on Damages, 8th ed., section 483; Shearman and Redfield on Negligence, section 759.

So we conclude there was no error on the part of the court, either in the admission of the evidence or its charge on that point. Another point is, that the verdict was excessive.

We are not able to agree with the counsel for plaintiff in error on that point. Personally, I am not able from reading this bill of exceptions, to understand why the court of common pleas should have seen fit to reduce this verdict; but the court did, and the plaintiff accepted the reduction, and judgment was rendered for that amount.

The evidence shows that this woman was suffering very badly at the time of the trial at the April term, 1896, from the injury, which she received in September, 1891, or at any rate in the fall of 1894; that she was unable to work at her employment at that time, scarcely any at all. Some of the physicians testified that it was a permanent injury; others that she may recover; but none of them could even guess within what length of time she would become a well woman. She was earning $10 a week at the time of her injury. She had worked at the place where she was working at the time of her injury for many years, and was undoubtedly a trusted employee; and if the business had continued, and she had continued her health, she would no doubt have staid there.

It is argued here that she went to work before she ought to, and thereby contributed to her injury, and considerable stress is put upon that point. A charge was suomitted by the court to the jury as drafted by counsel for the defendant, which put the lay on that subiect as strong as it could be claimed to be by anybody. The question of this plaintiff's injury and suffering and the amount she was entitled to recover is not to

Lucas Circuit Court.

be reduced by a mistake of judgment on her part as to what course of conduct she should pursue. There is no answer in this case averring that the plaintiff was negligent after she received this injury. It is averred that it was caused by her negligence, but that was abandoned on the trial, and the aim set up in the testimony that she was negligent in her conduct after her injury. We think the jury well found that claim against the railroad company. The doctors testified that they told her she might work, and she went to work. After she had stood upon her feet for a while she found that this injury grew worse, until she had to quit work. Her purpose in going to work was the very best; and counsel in the argument conceded that she had good motives in going to work. If she had good motives in going to work, and it was such a thing as a person in her condition and circumstances, exercising ordinary care and prudence, would have done, then she was not negligent in going to work too soon. And the fact that the physicians virtually told her that she might work, would be very strong evidence, I think, to convince a jury that she had not acted negligently in undertaking to work before she ought to work. The injury was to her knee, a very tender and difficult part of the human anatomy to treat; and physicians all say they cannot tell-and that I think is the experience of any of us who know of those injuries-how long an injury of that kind will last, or whether it will ever be cured. The formation of the bones at that point, and their action is so peculiar, when their possessor undertakes to stand or walk upon the foot, that a physician cannot tell, unless he knows exactly and completely what the injury is, and without some interior examination, they are not able to determine what the in

jury consists of. I think the jury might well have determined that she was not guilty of negligence in going to work, and might well have concluded that the company was liable for all the consequences of that injury. Upon that question I will cite again from Jones on Negligence of Muncipal Corporations, at page 515, a case referred to by the author, which is reported in 60 Hun., 567. That was a case where a woman fell upon a sidewalk and injured her ankle, and it was claimed that she should not have used it. The court said:

"We cannot, therefore, accede to the proposition made by the learned counsel for the defendant, that there rested upon the plaintiff the absolute necessity of not using her ankle until such time as the same should be fully restored, nor that the defendant is in any position to claim that the bare possibility of such improper use of the ankle should redound to its benefit.

"There is no principle of law which supports such contention, where the good faith of the party is not, but his ignorance alone is impugned. The duty rested upon the plaintiff to take proper care of the injured ankle, and not wantonly, carelessly or needlessly, to do any act which would aggravate the injuries to it. Her duty toward that member, however, was not so great and exclusive as to require her, in the absence of competent and positive medical instructions, to ignore and openly disregard the welfare of the rest of her members, and of her whole body. So long as she acted in good faith, and according to such lights as she had, the defendant, the party guilty of the wrong, cannot be permitted to complain of her mistake of judgment in the treatment of her ankle; nor successfully to claim that no liability should attach to itself, because the amount of compensation which should be awarded against it for its wrong is difficult or impossible of sep

Drinkwater v. Jones.

aration from the aggravations thereof accompanying an honest but mistaken treatment."

This case, I think, states the law as it is now understood.

There

is another case in which reference is made to this same subject-69 N. Y., 264. So that we conclude on this examination-and those are the only questions submitted to us-that there is no errror in this judgment, and it will be affirmed.

Smith & Baker, for Plaintiff in Error.

A. H. Coldhan and S. Kohn, for Defendant in Error.

*EDWARD H. DRINKWATER V. EGLANTINE JONES.

ACTION FOR Damages for FALSE IMPRISONMENT.

In an action for damages for false imprisonment, the defendant is liable, if, as a matter of fact, he did procure the arrest of the plaintiff, and the plaintiff was arrested at the instigation and direction of defendant, and was imprisoned or deprived of his liberty by his directions and under his procurement; as, in law, the act of the constable making the arrest becomes the act of the defendant.

ERROR.

KING, J.

Eglantine Jones brought an action, in the court of common pleas, against Edward H. Drinkwater, setting forth her cause of action in this petition:

"Plaintiff states that on the 12th day of April, 1895, at Toledo, Ohio, the defendant imprisoned plaintiff and deprived her of her liberty for the space of, to-wit, seven days, unlawfully and with force, on a pretended charge of larceny, to the damage of plaintiff in the sum of $500. Plaintiff further says that she was put to expense for counsel fees and other charges in the sum of, to-wit, $20, in obtaining her discharge, to her damage in all in the sum of $520, for which she prays a judgment against the defendant."

The answer is in the form of a general denial filed to this petition, and the case came on for trial, resulting in a judgment in favor of plaintiff below in the sum of $175. It is claimed that that judgment should have been set aside, because the court erred in the admission of testimony, in the charge of the court to the jury, because the damages. were excessive, and because, also, that the petition does not state a cause of action.

The latter claim is made, viz., that the petition does not state a cause of action in this case, because it describes the arrest as having been made upon a pretended charge of larceny, whereas the fact shown was that it was a charge for stealing or embezzling certain chattel mortgage property; and, again, that it does not state a cause of action, because it should set forth the facts and show in what manner the defendant had acted to secure the imprisonment; the facts shown on the trial being that Drinkwater had not arrested the defendant, but that he was the complainant, and swore to the affidavit charging her with the offense,

337.

This case was dismissed by Supreme Court for failure to file printed record. 4 Legal News,

Lucas Circuit Court.

and that the constable, who had received from a justice of the peace a legal warrant for that purpose, had himself arrested her.

We have examined the petition, and, although it is exceedingly brief, we think it fulfills the requirements of the code in that respect, and is substantially in the form of a petition found in the 33 O. S., page 186. The charge of the court (which I may as well consider in connection with this petition further), and which was objected to, was the statement by the court (page 37 of the record), as follows:

"If, as a matter of fact, he" (that is, the defendant below), “did so procure the arrest of the plaintiff, if the plaintiff was arrested at his instigation and direction, was imprisoned or deprived of her liberty by his directions and under his procurement, in law, the act of the constable became the act of the defendant."

And it is claimed that this was incorrect. But, again, referring to the case above cited, that was an action brought against the complaining witness, the justice of the peace and the constable who made the arrest, jointly, and the facts showed that all the complaining witness did was to go before a justice and there sign and swear to an affidavit pretending to charge a person with an offense; but the affidavit stated certain facts which showed that no offense had been committed, if the facts were true; the complaining witness did nothing further than that. Upon this sort of an affidavit the justice of the peace issued a warrant, and the constable received it and afterward made the arrest, and they were sued jointly and a judgment was rendered against the justice of the peace, and the complaining witness was upheld. The reasoning of the court is, that the complaining witness, by swearing to an affidavit of that kind, which did not charge any offense at all, would render himself liable to an action for false imprisonment if the party was arrested upon such an incomplete charge. But in this case, the facts are, that the complaining witness not only swore out a warrant (the warrant itself was in proper form, and so was the affidavit, charging a sufficient offense against one Eva Jones), but he accompanied the constable to the place where it was said he supposed Eva Jones was, and he pointed her out to the constable, and left the constable to arrest the person whom he said was Eva Jones, and the person charged as being Eva Jones professed that she was not, and it developed that she was a sister of Eva Jones, named Eglantine Jones, so that, as the facts appear in the record, she was not the person that he was seeking to have arrested, and not the person whom he had charged with the offense; and thus they arrested person against whom there was no charge at all. He did more than to make this affidavit-he took the constable to the place and pointed out the person to be arrested. We think that those facts, constitute a cause of action against himif he had pointed out a person who was not the one, he was liable. We deem the petition sufficient, and also think the charge of the court upon that question was sufficient.

As to the improper evidence admitted: On the cross-examination of defendant below, he was asked if he had not been in the habit previously of instituting other proceedings like this, or of having people arrested, and there was an objection and exception to that. We do not think that was proper, or that it ought to have been allowed; but we do not think it was prejudicial. His answer was, that he had, sometimes. We do not think that it is of sufficient consequence to authorize us to reverse this judgment.