St. Louis, Iron Mountain & Southern Railway Co. v. Hydrick

Wood, J., (after stating the facts). There was no error in the ruling of the court in permitting the testimony in regard to the amount of the doctor’s bills. The testimony was not hearsay, but was original evidence. One witness saw the doctor present his bill for his services. He saw what the amount was and saw the itemized bill, and there was no objection made to it by the appellee, to whom it was presented and for whom the services were rendered. Another witness testified that he saw the statement rendered to Hydrick by Doctor Justis for the amount of his services. The witness says the statement was rendered to Hydrick at the request of the witness. The testimony was competent as tending to show the amount the physicians charged for their services, and the amount that appellee would have to pay for same. The fact that the doctors rendered the accounts to the appellee, and that he acquiesced in the amounts thereof tends to establish the fact that appellee was indebted to the physicians for professional services in the sum of $246. Brown v. Brown, 16 Ark. 202. See also Hamilton-Brown Shoe Co. v. Choctaw Mercantile Co., 80 Ark. 440. There was no prejudicial error in the ruling of the court in granting appellee’s prayer for instruction No. 6. While this court, in the case of St. Louis, I. M. & S. Ry. Co. v. Steed, 105 Ark. 205, criticised a similar prayer because it did not tell the jury in specific terms that their finding as to the amount of damages must be based on the evidence, yet the court did not hold that the giving of the instruction in that ease was reversible error. In Railway Company v. Cantrell, 37 Ark. 522, this court, in commenting upon a similar instruction, said that it was “clearly correct.” "While such an instruction is not to be commended in form, and is open, to the objection mentioned in recent cases, yet, unless the attention of the court is specifically called to it, and the court refuses to make the correction, it can not be held that such an instruction is reversible error, and this court has not as yet reversed a case for a failure to qualify the instruction in the particular mentioned, although instructions in practically the same form as the one under consideration have often appeared in eases passed upon by this court. See L. R., M. R. & T. Ry. Co. v. Leverett, 48 Ark. 344; St. Louis, I. M. & S. Ry. Co. v. Price, 83 Ark. 437; St. Louis, 1. M. & S. Ry. Co. v. Dallas, 93 Ark. 214. While it is always better form, and the better practice, for the court to tell the jury that its findings on every issue of fact in the case must be based upon the evidence, yet where it is plain from the charge of the court, taken as a whole, that the jury were told that their findings must be based upon the evidence, the jury could not be misled nor feel authorized to make a finding that was not based upon the evidence because some separate or particular instruction omitted this precaution. The jury were sworn, in the first instance, to try the case and a true verdict render according to the law and the evidence. That being true, it is not likely that any man of sufficient intelligence to be a competent juror would feel authorized to wander beyond the evidence to find matters upon which to predicate his findings in the case. The conscientious juror would necessarily feel restrained by his oath to base his findings upon the evidence. In several other instructions which the court gave, both at the instance of the appellee and the appellant, the jury were given to understand that their findings upon the particular phases presented in each of the prayers for instructions should be based upon the evidence ; and, taking the charge as a whole, the jury could not possibly have understood that they were authorized to render any finding of fact that was not warranted by the evidence. This court, in McGee v. Smitherman, 69 Ark. 632, in passing upon an instruction that was challenged because it did not say that the amount of compensation “should be fixed and determined from the evidence,” used this language: “There is no means by which the jury could determine what would be a fair compensation for the loss sustained by the appellee, except the evidence, and it was, therefore, plainly implied, and every intelligent juror is presumed to have understood that the jury were to be governed by the evidence.’ ’ Mr. Thompson says that “juries are supposed to have some small trace of sense; there is a presumption that they are to find from the evidence, and, accordingly, it is not necessary to repeat this expression at every turn in the charge.” In other instructions in the case the court indicated to the jury that their findings must be based upon “a preponderance of the evidence,” and this was sufficient to prevent the possibility of their going outside of the evidence in making their verdict. Appellant contends that personal disfigurement wás not an element of damages in the case, for the reason that plaintiff was a convicted felon, and sentenced to confinement in the penitentiary for eleven years, and further objects to instruction No. 6 on that ground. A man does not cease to be a human being because he is convicted and is imprisoned in the State penitentiary. He does not thereby necessarily lose all sense of pride and pleasure in the perfection of his physical organism. Although occupying a felon’s cell, he may experience as great mental anguish over the dismemberment of his body and consequent disfigurement of his person as if'he were a free man, and the law is not so inhuman as to deny Mm compensation in damages against any one who may have negligently inflicted an injury upon him. The law makes no exceptions in such eases, against those convicted of and imprisoned for crime. The court, in its sixth instruction, enumerated the elements of damage which the jury were entitled to consider, under the pleadings and evidence in the case, and the loss of earning power was not mentioned as one of these elements of damage. This charge of the court was the guide to the jury; and the remarks by counsel concerning the loss of appellee’s leg must have had reference to his personal disfigurement. Indeed, the court so limited it, in response to the objection of appellant to such remarks. There was therefore no prejudicial error in the court’s refusing appellant’s prayer for instruction No. 10. The court having affirmatively told the jury in instruction No. 6 what elements of damage should be considered, it was not necessary to further instruct them that certain elements were not to be considered. Besides, as we have shown, the court, by its remarks, in effect, instructed the jury that there could be no recovery for loss of time or incapacity to labor. It must have been clear to the jury, from the court’s remarks and his formal charge in the sixth instruction, that the loss of the leg could only be considered as an element of' damage in the way of personal disfigurement. The other remarks of counsel did not transcend the bounds of legitimate argument. The pain and suffering and the mental agony which plaintiff has endured, and must continue to endure, by reason of the injuries he has received, as shown by the evidence, convinces us that the amount of the verdict is not excessive. The record is free from prejudicial error, and the judgment must therefore be affirmed.