Summary
In Montgomery Ward Co. v. Nickens, 203 Miss. 195, 33 So.2d 815 (1948), this Court said the express contracts of a married woman to pay for her "medical, hospital, nurses and doctors bills were valid and binding on her."
Summary of this case from Cooke v. AdamsOpinion
No. 36638.
February 23, 1948. Suggestion of Error Overruled, April 12, 1948.
1. MASTER AND SERVANT.
In action against employer for injuries while in discharge of plaintiff's duty under plaintiff's employment, negligence of employer was for jury under the evidence.
2. DAMAGES. Husband and wife.
Under statute a married woman can make any contract which she could have made while a feme sole, and contracts made by married woman not acting as her husband's agent for payment of medical, hospital, nurses and doctors bills were binding as to wife and she could recover from employer the expenses she contracted to pay when she was injured while in discharge of her duty under her employment (Code 1942, sec. 451).
3. PLEADING.
A "bill of particulars" is an amplification of a pleading, designed to make more specific general allegations which appear therein, and to avoid a surprise at the trial, its function being to do justice in the case when that cannot be accomplished without the aid of a bill by apprising the opposite party of the case which he has to meet (Code 1942, sec. 1499).
4. PLEADING.
In employee's action against employer for injuries where court directed employee to furnish bill of particulars including itemized statement of doctor bills but plaintiff in complying with order omitted one doctor bill, defendant by failing to object to allowing amendment to bill of particulars including the omitted bill waived right to have bill amended before evidence was proceeded with (Code 1942, sec. 1499).
APPEAL from the Circuit Court of Hinds County.
Jackson, Young, Daniel Mitchell, of Jackson, and Stuart S. Ball and David L. Dickson, both of Chicago, Ill., for appellant.
The trial court erred in refusing to grant defendant's peremptory instruction directing the jury to return a verdict for defendant. There is no evidence that defendant violated a duty to plaintiff by failing to furnish sufficient help. The master has the duty to exercise only reasonable care to provide reasonable assistance to his employees in the performance of their duties, and he is not an insurer of their safety.
Stewart v. Kroger Grocery Co., 198 Miss. 371, 21 So.2d 912; Natural Gas Engineering Corp. v. Bazor (Miss.), 137 So. 788; Everett Hardware Co. v. Shaw, 178 Miss. 476, 172 So. 337; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264; Jefferson v. Denkmann Lumber Co., 167 Miss. 246, 148 So. 237; Pearl River Valley R. Co. v. Moody, 178 Miss. 1, 171 So. 769; F.W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447; Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Herrin Motor Lines, Inc., v. Jarvis, 156 F.2d 276; Flike v. Boston Albany R. Co., 53 N.Y. 549, 13 Am. Rep. 545; Levecke v. Curtis Co. Mfg. Co. (Mo.), 193 S.W. 985; Western Union Telegraph Co. v. Coker (Tex.), 202 S.W. 710; West Lumber Co. v. Morris Barnes (Tex.), 257 S.W. 592; Code of 1942, Sec. 1456; Vernon's Civil Statutes of Texas, Art. 8306, Sec. 1.
The testimony of the plaintiff and her witnesses clearly shows that there is no evidence that the defendant failed to exercise reasonable care to furnish assistance to plaintiff. Plaintiff was a saleslady whose need for assistance was minimal. The uncontroverted evidence shows that the defendant had at least four employees available to assist plaintiff, had informed plaintiff she did not have to unroll linoleum by herself, and had set up a procedure whereby plaintiff could obtain assistance when needed. The reasonable care which the law demands of the retail merchant does not require him to have an employee in constant attendance upon plaintiff to afford her immediate assistance whenever and if she needs assistance.
Plaintiff's voluntary attempt to unroll the linoleum, a task which by her own admission was obviously beyond her strength, was not required by her employment and was the sole proximate cause of her injury. The servant is the best judge of his own physical strength, and in the absence of coercion he is solely responsible for the consequences if he overtaxes it.
Batson Hatten Lumber Co. v. Thames, 147 Miss. 794, 114 So. 25; Cobb Brothers Construction Co. v. Campbell, 176 Miss. 695, 170 So. 283; Ovett Land Lumber Co. v. Adams, 109 Miss. 740, 69 So. 499; Rose v. Pace, 144 Miss. 375, 109 So. 861; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Martin v. Beck, 177 Miss. 303, 171 So. 14; Stewart v. Kroger Grocery Co., supra; Brown v. Coley, 168 Miss. 778, 152 So. 61.
There is no credible evidence that plaintiff had to cut the linoleum or lose her job, because the interpretation placed on alleged coercive language by the employee is not controlling, since the inferences drawn from said language must be reasonable and fair.
Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556.
No reasonable inference can be drawn from the evidence that plaintiff was required to unroll linoleum without assistance, due to defendant's refund and customer policies.
Eastman Gardiner Hardwood Co. v. Chatham, supra; Montgomery Ward Co., Inc., v. Lindsey, 104 F.2d 882.
There is no evidence that the alleged defective latch on the linoleum rack was the proximate cause of the accident. The master has a duty to keep his machinery and appliances in a reasonably safe condition. The only evidence with respect to the defendant's maintenance of its machinery or appliances is that a latch on the linoleum rack could not be lowered to secure the linoleum rod in a stationary position while the linoleum was being unrolled. Uncontroverted evidence reveals that the linoleum cannot be unrolled if the latch is lowered and fastened to the rod. The alleged fact that the latch could not be lowered, even if true, was not the proximate cause of the accident.
The trial court erred in overruling defendant's motion to exclude plaintiff's evidence in regard to medical and hospital bills, because plaintiff failed to establish that her husband was not primarily liable for such expenses, and under these circumstances such expenses are not a proper element of damages in a suit brought by the wife.
Galtney et al. v. Wood, 149 Miss. 56, 115 So. 117; Vincent v. Corbitt, 94 Miss. 46, 47 So. 641; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426; St. Louis-San Francisco R. Co. v. Loftus, 109 Okla. 141, 234 P. 607; Kellihan v. McHutt, 70 Colo. 318, 201 P. 37; Warth v. Jackson County Court, 71 W. Va. 184, 76 S.E. 420; Corbin v. City of Huntington, 74 W. Va. 479, 82 S.E. 323; Richmond Railway Electric Co. v. Bowles, 92 Va. 738, 24 S.E. 388; Pomerene Co. v. White, 70 Neb. 171, 97 N.W. 232, 98 N.W. 1040; City of Columbus v. Strassner, 138 Ind. 301, 34 N.E. 5; Krisinger v. City of Creston, 141 Iowa 154, 119 N.W. 526; Ashby v. Elsberry N.H. Gravel Road Co., 111 Mo. App. 79, 85 S.W. 957; Thibeault v. Poole, 283 Mass. 480, 186 N.E. 632; Fink v. Baer, 180 Minn. 433, 230 N.W. 888; Code of 1942, Sec. 451; 5 C.J.S. 1026, Sec. 1736, p. 1028, Sec. 1736 (e) (2); 41 C.J.S. 891, Sec. 401 (b) (1), p. 894, Sec. 401 (b) (2) (d); 3 Am. Jur. 688, Sec. 1179; 27 Am. Jur. 94, Sec. 496.
The plaintiff having failed to amend her bill of particulars so as to include Doctor Ross as one of the doctors who had treated her and to whom she had paid doctors' bills, the evidence of the amounts paid to Doctor Ross and the treatments rendered by him was erroneously admitted.
Lackey et al. v. St. Louis S.F.R. Co., 102 Miss. 339, 59 So. 97; Oliver v. Miles, 144 Miss. 852, 110 So. 666, 50 A.L.R. 357; Pigford v. Howse, 149 Miss. 692, 115 So. 774; Gill v. L.N. Dantzler Lumber Co., 153 Miss. 559, 121 So. 153; Curry Turner Construction Co., Inc., et al. v. Bryan, 184 Miss. 44, 185 So. 256; Code of 1942, Sec. 1499; 41 Am. Jur. 481, Sec. 273.
Plaintiff's fourth instruction erroneously permitted plaintiff to recover without proof of defendant's negligence at the time in question, and upon grounds not sustained by the evidence. The instruction authorized recovery if defendant failed to furnish plaintiff assistance in her work at any time, without proof (1) that plaintiff made a reasonable request for such assistance, or (2) that failure to furnish assistance was negligent. The instruction authorized the jury to find that plaintiff was required to unroll linoleum without assistance on the day in question, and that her injury was proximately caused by the defective latch, although there was no evidence to support either finding.
Hines v. McCullers, 121 Miss. 666, 83 So. 734; Yazoo M.V.R. Co. v. Alexander, 182 Miss. 654, 179 So. 266; O'Bryant v. Coleman, 169 Miss. 776, 154 So. 259; Interstate Life Accident Co. v. Cooley, 150 Miss. 502, 117 So. 267; Southern R. Co. v. Lanning, 83 Miss. 161, 35 So. 417; Hunt v. Sherrill, supra; Herrin Motor Lines, Inc., v. Jarvis, 156 F.2d 276.
Barnett, Barnett Jones, Francis Bowling and Henry Edmonds, all of Jackson, for appellee.
The lower court did not commit error in submitting to the jury the question as to whether appellee was furnished reasonably sufficient help.
Everett Hardware Co. v. Shaw, 178 Miss. 476, 172 So. 337; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264; Jefferson v. Denkmann Lumber Co., 167 Miss. 246, 148 So. 237; Pearl River Valley R. Co. v. Moody, 178 Miss. 1, 171 So. 769; F.W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447; Natural Gas Engineering Corp. v. Bazor (Miss.), 137 So. 788; Herrin Motor Lines, Inc., v. Jarvis, 156 F.2d 276; Western Union Telegraph Co. v. Coker, 202 S.W.2d 710; Flike v. Boston Albany R. Co., 53 N.W. 549, 13 Am. Rep. 545; Levecke v. Curtis Co. Mfg. Co., 193 S.W. 985; 39 C.J. 523, Sec. 627.
There was ample evidence to warrant the jury in finding that the defective latch on the rack was a proximate cause of appellee's injury.
It is clear that there was ample evidence adduced by appellee under both theories of negligence to present these questions to the jury.
Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Louisville N.R. Co. v. Jones, 134 Miss. 53, 98 So. 230; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Albert v. Doullut Ewin, 180 Miss. 626, 178 So. 312; Graham v. Brummett, 182 Miss. 580, 181 So. 721; Elliott v. G.M. N.R. Co., 145 Miss. 768, 111 So. 146; Godley v. Hines, 123 Miss. 560, 86 So. 289; White v. Louisville, N.O. T.R. Co., 72 Miss. 12, 16 So. 248; Veney v. Samuels, 142 Miss. 476, 107 So. 517; Hardy v. Turner-Farber-Love Co., 136 Miss. 355, 101 So. 489; Pearl River Valley R. Co. v. Moody, supra; Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; True-Hixon Lumber Co. v. Thorn, 171 Miss. 783, 158 So. 909; Burrill v. Rau, 153 Miss. 437, 121 So. 118; Harper v. Wilson, 163 Miss. 199, 140 So. 693; 35 Am. Jur. 939, Sec. 513, p. 946, Sec. 517.
The trial court did not commit error in admitting evidence in regard to medical and hospital bills incurred by appellee.
Galtney et al. v. Wood, 149 Miss. 56, 115 So. 117; St. Louis-San Francisco R. Co. v. Loftus, 109 Okla. 141, 234 P. 607.
The lower court did not commit error in allowing testimony pertaining to the bill and treatment of Dr. Ross.
There was no error in the instructions.
Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821; Sumner Stores of Mississippi v. Little, 187 Miss. 310, 192 So. 857; C. R. Stores v. Scarborough, 189 Miss. 872, 196 So. 650; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65; Cox v. Dempsey, 177 Miss. 678, 171 So. 788; Yazoo M.V.R. Co. v. Mullen, 158 Miss. 774, 131 So. 101; Hammond v. Morris, 156 Miss. 802, 126 So. 906; Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896.
Argued orally by Milton M. Mitchell, for appellant, and by Ross R. Barnett, for appellee.
The appellee, an employee of the appellant, was injured while in the discharge of her duty under her employment. On the evidence whether the appellant was guilty of the negligence charged in the appellee's declaration was for the determination of the jury, consequently the court below committed no error in refusing to direct the jury to return a verdict for the appellant and no reversible error, if error at all, appears in the instructions granted the appellee, of which the appellant complains.
Over the objection of the appellant the appellee was allowed to introduce evidence of hospital, medical, nurses and doctors bills necessarily incurred by her because of the injury which she here suffered. The ground of the appellant's objection thereto was thus stated by its counsel in the Court below: "We object to any testimony with reference to amounts expended for doctors, hospitals, medicine, or treatment of Mrs. Nickens, she having testified that she is married, that her husband is employed as a machinist's helper with the G.M. O. Railroad Company, and, under the law, she would not be permitted to recover any amounts expended even though they were expended by her, since her husband alone is liable for the necessities for his wife."
No objection on any other ground was interposed to any of this evidence, except to that of the bill of Dr. Ross, which will be returned to later. According to the appellee's evidence, which was without contradiction, she contracted to pay these bills herself and nothing in the evidence indicates that she was acting as her husband's agent. Under Section 451, Code 1942, a married woman has the right to make any contract which she could have made while a feme sole, so that the contracts the appellee here made for the payments of her medical, hospital, nurses and doctors bills were valid and binding on her, Skehan v. Davidson Co., 164 Miss. 518, 145 So. 247, and therefore the expenses she thereby contracted to pay may be recovered by her. 41 C.J.S., Husband and Wife, Sec. 401; Galtney v. Wood, 149 Miss. 56, 115 So. 117; Cf. McLemore v. Riley's Hospital, 197 Miss. 317, 20 So.2d 67. No error, therefore, was committed by overruling the appellant's objection to this evidence.
The Court below had directed the appellee to furnish the appellant with a bill of particulars, including "an itemized statement of all doctors, medical, hospital and nurses bills incurred" by her. In complying with this order the appellant failed to include the name and bill of Dr. Ross. When evidence as to this bill was offered by the appellee it was objected to on the ground that it did not appear in the bill of particulars. Counsel for the appellee, after giving an excuse for the failure to include the bill of Dr. Ross in the bill of particulars, asked "leave to amend and put in the bill of Dr. Ross." The Court responded thereto by saying, "The motion to amend is sustained. Proceed." Counsel for the appellee then asked, "May we make the amendment a little later, your Honor?" To which the Court replied, "Yes." No objection was made thereto by counsel for the appellant and the trial proceeded to its close without the amendment being actually made.
The amendment which the Court here granted the appellee leave to make was not to her declaration, and the evidence which she offered would have been admissible thereunder except for the appellant's request for a bill of particulars. "A bill of particulars is properly an amplification of a pleading, designed to make more specific general allegations which appear therein, and to avoid a surprise at the trial. The function of a bill of particulars is to do justice in the case when that cannot be accomplished without the aid of such a bill, and that is to apprise the opposite party of the case which he has to meet. . . ." 49 C.J. 622; 41 Am. Jur. 478; Sec. 1499, Code 1942; Nevitt v. Rabe, 5 How. 653; Chicago, etc., R. Co. v. Provine, 61 Miss. 288; Knox v. Southern Paper Co., 143 Miss. 870, 108 So. 288. By what here occurred the appellant was fully advised of the nature and amount of Dr. Ross' medical bill, and by not objecting thereto waived its right to have the bill of particulars amended before the evidence was proceeded with; and it does not appear, and no claim is made, that the appellant was harmed thereby. We have not overlooked the cases cited by counsel for the appellant in this connection.
Affirmed.
Griffith, J., took no part in the above decision.