Brooks v. Ludin — 57 N.Y. Super. Ct. 145

Majority

p. 145

WILLIAM BROOKS, Appellant, v. SUSAN A. LUDIN, Respondent.

Headnote

New trial in negligence case, when not granted on ground of insufficiency of verdict.—Physician’s bill, when jury not bound to find for its face.

The jury rendered a verdict for plaintiff of $ 30, damages for injuries received by him through the defendant’s negligence. There was evidence of incidents and appearances tending to show that the injuries were slight and trivial, and that their nature and extent had been exaggerated by plaintiff in his testimony. Held, that it was the province of the jury to determine on the evidence as to the nature, character and extent of the injury, and

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to measure their verdict according to their finding thereon; and that the court could not say that the finding of the jury thereon called for a larger verdict than that which they rendered.

On the trial it appeared that the physician who attended the plaintiff rendered him a bill for $160 for about twenty attendances, and that the bill had not been paid. There was no testimony that the charge was reasonable or customary. Held, under this state of the evidence, that the jury were not bound to find a verdict for the face of the bill.

Before Sedgwick, Ch. J., Freedman and Truax, JJ.

Decided June 28, 1889.

Appeal by plaintiff from judgment entered on verdict in his favor, and from order denying a motion for a new trial, on the ground that the damages given by the verdict were sufficient. Section 99,-Code Civil Procedure.

The facts sufficiently appear in the opinion and head notes.

A. Oldrin Salter, attorney, and Alexander Thain, of counsel, for appellant.

Deyo, Duer, & Bauerdorf. attorneys, and Robert E. Deyo, of counsel, for respondent.

There was no exception taken at the trial which entitled the appellant to a reversal of the judgment.

The opinion of the learned judge, denying the new trial for the insufficiency of the verdict, was plainly correct. Besides the right of the jury to determine that the extent of the plaintiff’s injuries and their effects had been exaggerated by him in his testimony, and to duly weigh the testimony of the plaintiff’s physician on the same points, there was testimony on the side of the defendant as to incidents and appearances, that, if believed, would re

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quire the jury to consider that the plaintiff’s testimony was not accurate.

The learned counsel thinks that, at least, the verdict should have been as large as the medical expenses of the plaintiff as sworn to by himself and by his physician. The jury, however, was not bound to find for the face of the bill rendered. The case was not serious and the treatment was simple. Eight dollars a visit was charged. But the physician, and no other witness, testified that the charge was reasonable or customary. The bill had not been paid by plaintiff.

The jury were bound to give only such damages as were proved.

Judgment and the order appealed from affirmed, with costs.

Freedman and Truax, JJ., concurred.