Opinion
5 Div. 362.
April 16, 1942.
Appeal from Circuit Court, Lee County; Albert Hooton, Judge.
Denson Denson and L. J. Tyner, all of Opelika, for appellant.
Where it is claimed by one that he has been injured through the negligence of another and has expended money for medicine, no recovery can be had for the amount expended therefor, unless such amount is shown to be reasonable. Aplin v. Dean, 231 Ala. 320, 164 So. 737; White v. Thorington, 219 Ala. 101, 120 So. 914; Montgomery v. Shirley, 159 Ala. 239, 48 So. 679. Where plaintiff fails to make out a prima facie case, motion to exclude all testimony is proper and should be granted. Dorough v. Alabama G. S. R. Co., 221 Ala. 305, 128 So. 602; King-Store Co. v. Thomas, 24 Ala. App. 324, 134 So. 822. A verdict rendered in disregard of the instructions of the court, though instructions are erroneous, should be set aside. Fulton v. McQuirter, 222 Ala. 640, 133 So. 703. Where negligence is averred, it must be proved as laid in the complaint; and while general averments of negligence will suffice in pleading, yet if plaintiff defines the quo modo and specifies the negligence, then proof of the negligence as charged must be made. Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933; Priester v. Western Union Tel. Co., 20 Ala. App. 388, 102 So. 372. A quotient verdict is illegal and upon motion made should be set aside and a new trial granted. Southern R. Co. v. Williams, 113 Ala. 620, 21 So. 328; International Agr. Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549, 49 L.R.A., N.S., 415.
Jacob A. Walker, of Opelika, for appellee.
Testimony of amount asked and paid for merchantable articles is evidence of their value. Massey v. Fain, 1 Ala. App. 424, 55 So. 936; Southern R. Co. v. Bailey, 220 Ala. 385, 125 So. 403; Vance v. Myers, 213 Ala. 660, 106 So. 142; Warrant Warehouse Co. v. Cook, 209 Ala. 60, 95 So. 282; People's Auto Co. v. Staples, 225 Ala. 372, 143 So. 553; Newton v. Wilder, 225 Ala. 339, 142 So. 831. Some items of expense are so well within the common knowledge that expert testimony of their reasonableness is unnecessary. Britling Cafeteria Co. v. Shotts, 233 Ala. 590, 173 So. 61. In absence of evidence of reasonableness of amount paid for medical services, appellant must at close of evidence move for exclusion of such testimony or ask for affirmative instruction against recovery in that amount, as in other cases of failure of proof. Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 53 A.L.R. 840; Birmingham R., L. P. Co. v. Humphries, 172 Ala. 495, 55 So. 307; Aplin v. Dean, 231 Ala. 320, 164 So. 737. Motion for new trial should not be granted unless it specifically points out wherein the verdict and judgment are contrary to law. Little v. Peevy, 238 Ala. 106, 189 So. 720; Ard v. Crittenden, Ala.Sup., 39 So. 675. That verdict is contrary to charge of the court is too general as ground for new trial. N.C. St. L. R. Co. v. Crosby, 194 Ala. 338, 70 So. 7; Alabama M. R. Co. v. Brown, 129 Ala. 282, 29 So. 548. In absence of evidence of agreement by jury to abide the results of the quotient of the sum of their several estimates of the amount of the verdict, the verdict is not an illegal quotient one. Dothan v. Hardy, 237 Ala. 603, 188 So. 264, 122 A.L.R. 637; 27 R.C.L. 847, §§ 20, 21; George's Restaurant v. Dukes, 216 Ala. 239, 113 So. 53.
This is an action for damages in negligently bottling a soft drink so as to contain specified deleterious matter causing personal damage and expense to plaintiff as a result of drinking the contents or some of it. We are not trying to state the substance of the complaint, but only the nature of the cause of action.
There are numerous assignments of error. We will only mention those which seem to need discussion.
Assignments of Error 5, 6, 7 and 8.
They all relate to an item of damage consisting of a bill for medicine. The bill stating the amount was offered over general objection, overruled, but no exception. After proof of its payment, appellant moved to exclude evidence of the amount so paid because the charges were not shown to be reasonable, and on general grounds. This was overruled, and appellant excepted.
There were several rulings in this connection treated together in argument. They are sufficiently related to be so treated.
The appellant and the court could not know to what extent plaintiff would make his preliminary proof, for he could not do it all at once. Under such circumstances it has been pointed out that after plaintiff has finished such preliminary proof, if it is not sufficient a motion to exclude that feature of the evidence would be the proper procedure. Aplin v. Dean, 231 Ala. 320, 324 (11 and 12), 164 So. 737. Appellant should not be considered to have lost the benefit of a ruling and exception on this motion properly made because some of the assignments treated with it are not in such attitude as to be complete in presenting the question and because they are argued together.
We have had many cases relating to the necessity of proving that such a charge is reasonable. The party making the claim must prove that it was paid and that it was reasonable. City of Birmingham v. Norwood, 220 Ala. 497, 498, 126 So. 619; Newton v. Altman, 227 Ala. 465, 150 So. 698; Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 53 A.L.R. 840; Birmingham R., L. P. Co. v. Humphries, 172 Ala. 495, 55 So. 307.
It was observed in the Norris case, supra [ 216 Ala. 138, 112 So. 636, 53 A.L.R. 840], "If the subject be a matter of common knowledge, and the nature of the charge or expense be before the jury, the sum paid may serve as some evidence of reasonable value in the absence of evidence to the contrary." But that a proper charge for surgical and medical attention was not a matter of common knowledge.
Likewise in the Norwood case, supra, we held that no such common knowledge exists as to hotel bills. And in Tomme v. Pullman Co., 207 Ala. 511, 93 So. 462, proof must be made that a laundry bill was reasonable.
We would say that a bill for medicine may be composed at least partly of items whose reasonable value is within the range of common knowledge. Compare Britling Cafeteria Co. v. Shotts, 233 Ala. 590, 173 So. 61. Neither the bill for drugs nor evidence specifying the items composing it is set out in the bill of exceptions. The burden is on appellant to make prejudicial error affirmatively appear from the record. That has not been done in this connection.
Assignments of Error 13 and 14.
These relate to the motion for a new trial. This motion was based on several grounds. The first three grounds grouped in argument for appellant are to the effect that the verdict was not properly supported by the evidence: the fourth and seventh that it was contrary to the law and charge of the court. These are general grounds.
The weight of the evidence is not such as that the verdict is not well enough supported to withstand this attack. And whether it is contrary to the law as applied by the court depends upon the force of the various assignments. We have treated the only feature of them which is of such character as seems to need discussion.
The grounds of the motion 8, 9, 10, 11 and 12, which present the point that the verdict was improperly arrived at under the rule which prohibits a quotient verdict as that principle is defined by our cases, are insisted on by appellant. We have examined the evidence and the exhibits which were certified to us. Movant did not in our judgment sustain the burden which is upon him in that respect. But it is not necessary to give detail of the evidence. There was no error in respect to those grounds of the motion for a new trial.
Ground numbered 5 of the motion is that the amount of the damage is excessive. Due care has been given to this contention, and we have reached the conclusion that the verdict ought not to be disturbed on this, nor on any other ground of the motion. But a discussion of the evidence would serve no useful purpose.
Affirmed.
GARDNER, C. J., BOULDIN, and LIVINGSTON, JJ., concur.