Tuohy v. Columbia Steel Co.

Mr. Justice McBride

delivered the opinion of the court.

1, 2. It has been frequently held that a willful attempt by a plaintiff in a personal injury case to show that the defendant was protected by insurance constitutes reversible error. The ground for this holding is that a knowledge that the defendant has such protection might have a tendency to render jurors careless as to the amount of the verdict. • But the rule is not universal. In the case at bar the witness was an attorney, and the fact that as such and acting for an insurance company he had procured a statement from a prospective witness in regard to certain facts was admissible to show his motive and interest in the case. An objection to the question was sustained, and there is no probability that the incident had any effect upon the minds of the jury. Where such questions are improperly asked, with the intent to get before the jury a fact not material to the case,, the court should penalize the party guilty of such misconduct by discharging the jury. But in this case the- question asked was one which might naturally suggest itself under the circumstances, and does not seem to have been dictated by a desire to excite that prejudice, which many jurors seem to entertain against insurance companies, and, as before observed, was not asked in a manner likely to have had such an effect.

3. The question asked Dr. Ong, in relation to what the effect would be in producing a magnet if the wire or connection between the magnet and the electricity were not connected or out of order, was not improper. The theory of the defense was that the piece of metal which entered plaintiff’s eye was from a manganese casting, and that such a substance would not be attracted by a magnet. The piece of steel presented by plaintiff and which the testimony of his witnesses tends to show was the identical one extracted from his eye was readily attracted by a common magnet, as was demonstrated in the presence of the jury. Under these circumstances, the jury was entitled to know that there might be conditions under which the complicated electric machine of Dr. Connell would fail to attract steel. In fact, there can be but one conclusion from the testimony — either that plaintiff’s witnesses were trying to foist upon the jury a piece of metal different from that which injured him, or that from some unexplained cause Dr. Connell’s magnet did not work properly. It was proper for the jury to understand the difference between a machine of that complicated character and the common horseshoe magnet exhibited to them, which possesses in itself the quality of attraction.

It is noteworthy also in this connection that experiments performed in the presence of the jury upon pieces of manganese steel showed that that substance was likewise attracted by a common magnet, and, reasoning from the effect to the cause, it seems highly probable that Dr. Connell’s magnet was in some manner out of order when the first experiment was made.

4. The court should have withdrawn the question of special damage for medical attention from the consideration of the jury. The rule is that a plaintiff in a case involving personal injuries can recover, as a part of his damages, his reasonable expenses for medicines and medical treatment, but there must be some evidence that the charges are reasonable. International & G. N. R. Co. v. Boykin, 32 Tex. Civ. App. 72 (74 S. W. 93) ; Amann v. Chicago Consol. Traction Co., 243 Ill. 263 (90 N. E. 673) ; Wheeler v. Tyler, S. E. Ry. Co., 91 Tex. 356 (43 S. W. 876).

5. This would lead necessarily to a reversal of the case were it not for the fact that the amounts claimed are definite, and can easily be separated from the rest of the recovery, and it is evident that under the instructions the jury could do but one thing, namely, find for plaintiff for the full amount of the bills. Plaintiff should be required, therefore, to remit the amount of these bills from the amount of his judgment.

6. It is claimed that the verdict is for an excessive amount, and instances are adduced where verdicts in much smaller amounts for injuries of like character have been set aside as excessive. The evidence indicates that the plaintiff suffered great pain for the greater part of a year, and that the sight of the other eye has been affected sympathetically to some extent, and we are not prepared to say that under the particular circumstances of this case the verdict is excessive. This court has always held that the question of excessive damages was a matter solely for the trial court, and its refusal to set aside a verdict on that ground would not be reviewed here. Nelson v. O. R. & N. Co., 13 Or. 142 (9 Pac. 321) ; McQuaid v. P. & V. R. R. Co., 19 Or. 535 (25 Pac. 26) ; Adcock v. Oregon R. Co., 45 Or. 181 (77 Pac. 78) ; Wolf v. City Ry. Co., 50 Or. 80 (85 Pac. 620: 91 Pac. 460: 15 Ann. Cas. 1181).

It is therefore ordered that, if the plaintiff shall within 30 days remit the amount claimed for medical attendance and nursing, erroneously submitted to the jury, and aggregating the amount of $950, the judgment will be affirmed as to the residue, but that, failing to do this, the judgment will be reversed.

Affirmed Conditionally: Rehearing Denied.