
    The Cleveland Ry. Co. v. Kuncic.
    
      Negligence — Wife, passenger in husband’s automobile, injured by street car collision — Prejudicial to include wife’s medical bills in damages recoverable — No evidence of implied contract by wife to pay therefor — Husband liable for medical bills as necessaries-- — Liability not released by Married Women’s Act — Sections 7996, 7999 and 8000, General Code — Charge to jury erroneous — Driving automobile on wrong side of street justified by charge — Error to charge violation of statute prima facie evidence of negligence.
    
    1. An implied contract must depend on substance for its existence, and there must be some act or conduct of parties sought to be bound on which it arises.
    2. As regards right of wife to recover for medical services against one causing injuries', husband is bound to pay for medical services rendered to wife as necessities; he not being excused from liabilty thereof because of Sections 7996, 7999 and 8000, General Code, respectively, establishing husband as the head of the family, permitting spouses to contract with each other, and providing that parties cannot alter legal relations.
    3. In action by a married woman for personal injury, where there was no evidence showing implied contract for plaintiff to pay for medical services, instruction that jury, if finding for plaintiff, award allowance for medical bills which she had incurred or was liable for, caused directly by the accident, held prejudicial error, especially where there was no proof of charges made by physicians, or as to their reasonableness or legal basis for medical charges'.
    
      4. In action for personal injury from collision between automobile and a street car, instruction that no vehicle may stop on highway except at right-hand side of improved portion of road, nor obstruct free passage, provided nothing in Section 6310-27, General Code, (110 O. L., 137), should apply when driver was compelled or permitted to stop by reason of lawful regulation or emergency, held error as permitting jury to excuse or justify driver of plaintiff’s car from being on the wrong side of the highway at time of accident, notwithstanding Section 6310-17 (110 O. L., 136), which provides vehicles shall keep to right side of road, except when making turn or passing vehicles going in same direction.
    5. In action for injuries in collision with street car, instruction that violation of Section 6310-17, General Code, (110-O. L., 136), as to driving on right side of highways, without excuse therefor, was in law prima, facie evidence of negligence of automobile driver, held error, since violation of a statute is negligence per se.
    
    (Decided June 13, 1927.)
    Error: Court of Appeals for Cuyahoga county..
    
      Messrs. Squire, Sanders £ Dempsey, for plaintiff in error.
    
      Messrs. Nicola £ Horn, for defendant in error.
   Sullivan, P. J.

This is a proceeding in error from the court of common pleas of Cuyahoga county, wherein a judgment upon the verdict of the jury was pronounced against the Cleveland Railway Company, the defendant below, and in favor of the defendant in error, Gertrude Kuncic, the plaintiff below, whose cause of action was a claim for damages by reason of a collision between an automobile driven by her husband, in which she rode as a passenger, and one of the cars of the defendant company, occurring about 5:30 a. m. on Christmas morning, 1924.

It appears that, while crossing what is known as the Collinwood bridge, which spans the tracks of the New York Central Railroad, the bridge became partially involved in steam and smoke, arising from underneath the bridge, and thereupon the automobile in which plaintiff was riding veered from the right or proper side of the road to the left or improper side of the road, and immediately a headlight of one of the cars of the railway company revealed the danger of the position of the automobile. Thereupon the driver of the machine undertook to veer to the right, apparently to get back to the proper place upon the highway, when the collision occurred between the street car and the automobile, resulting in the injuries complained of.

There have been two trials of the case. In the first there was a verdict for the defendant, but the judgment was set aside on the ground that it was clearly and manifestly against the weight of the evidence, and, upon being tried again, a verdict was rendered for the plaintiff in the sum of $2,000, to reverse which judgment these proceedings in error are brought.

One of the assignments of error is that medical expenses, based upon substantial professional services, were considered by the court below an issue in the case, and made the subject of instructions to the jury. There is no evidence in the record of substantive character that the wife, who was plaintiff below, and riding as heretofore noted with her husband, who was driving, had entered into either an express or an implied contract with the physicians and surgeons for their services. There is no question about an express contract, but there is a conflict, in claim at least, as to whether there is an implied contract. An implied contract must depend upon substance for its existence. In other words, there must be some act .or conduct of the party sought to be bound, from which an implied contract arises. It cannot arise from nothing, such as a conjecture or a possibility. It must rest upon a substantive foundation. In other words, it is just as necessary that there be a structure for an implied contract as it is conceded there should be for an express contract. The implication arises only from something which the party sought to be bound says or does.

In the instant case, these requirements are not met by the proof, because there is no act or conduct on the part of the wife that touches upon the obligation for service, except that she accepted the same. Under such circumstances, it is our judgment that, inasmuch as these services are necessities, the husband under the Ohio doctrine is bound for their payment. He is not excused, as was intimated by the court below, from liability, simply because of the provisions of Section 7999, G-eneral Code:

“A husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other.”

This section of the statute in no way releases the husband from obligation as the head of the family for necessaries furnished the wife, and especially for services rendered for bodily injuries, which are in the nature of an emergency. The provisions of the statute are simply definitive of the rights of the wife, but in no way confer the privilege upon her of the right to contract by paying the penalty of releasing her husband from his obligation for necessities, under the interpretation of the Ohio statutes as established by authority of the Supreme Court, and the statute in no way releases the husband from obligations of necessity that existed prior to its passage.

Section 7996, General Code, establishes the husband as the head of the family, and his wife must conform to any reasonable place or mode of living. Neither does Section 8000 alter the obligations of the husband, because of its provisions that the husband and wife cannot alter their legal relations.

Therefore, in our judgment, the court below committed prejudicial error in giving the following instruction to the jury:

“You also will award plaintiff, if you find in her favor, an allowance for physicians and hospital, medical bills which she has incurred, or to which she will become liable, caused directly by the accident, except those items of medical bills and hospital service which can, of course, be measured directly in the matter.”

There is not only absence of proof in the record as to any contract on the part of the wife to pay for the services, but there is also no proof of a substantive nature as to the charges made by the physicians, or as to whether they were reasonable, or, further, as to whether there was a legal basis for professional charges caused directly by the accident to which she might become liable.

In City of Toledo v. Duffy, 13 C. C., 482, 7 C. D., 113, it is held that a husband is liable for the medical services rendered his wife, where there is no special contract to the contrary, and it is further held in that case that, in a suit for damages by a married woman, expenses for medical attention are not to be considered by the jury in awarding damages, unless by special contract the husband is released. On page 484 of the opinion we read the following, which has an important bearing upon the instant case:

“If the wife being injured as was the plaintiff below in this case, sends as she might for a physician, and the physician comes, she is acting in that case as the agent of her husband, and he will be liable for the physician’s bill, in the absence of a special contract between her and the physician whereby she herself personally becomes liable herself to pay him. The difficulty with this charge is, that it informs the jury that if the wife sent for the physician, employed him, and he attended her at the time she was injured, then she became personally liable. We do not so understand the law. We think it is very clear from the evidence in this case that there was no employment in a legal sense by her of the physician, and that the husband alone was liable; and we think it was clearly the duty of the court, under the testimony, to have directed the jury that the services of the physician could not be recovered by the plaintiff in this case as against the city.”

Under such instructions there is only one conclusion, and that is the presumption that the jury conformed to the instructions of the court; and therefore to the verdict some amount, great or small, was added to the claim for actual damages; and the reasonable conclusion from the character of the professional services rendered, as outlined in the record, is that the sum' was substantial.

In Tuttle v. Furi, 22 C. C., (N. S.), 388, 33 C. D;, 626, it is held that, where such an item is included in damages, the error is not cured by remittitur, because, as in the instant case, there is nothing in the record to determine the amount.

This doctrine was laid down in Toledo v. Duffy, supra, and can also be found in Mt. Adams & Eden Park Ry. Co. v. Wisong, 8 C. C., 211, 6 C. D., 28.

The court said at page 394, in Tuttle v. Furi, supra, bearing upon this point:

“We have no means of knowing whether or not this remittitur was made because under the charge the jury might erroneously have included these items amounting to $26 in their verdict. But whether so or not, the remittitur cannot cure the error in the charge in permitting-. the plaintiff to recover reasonable expenses incurred for ‘care’ made necessary by the injury.”

Thus it is our judgment that there is prejudicial error in the instruction now under discussion.

In Du Bois v. Coen, Ex’r., 100 Ohio St., 17, 125 N. E., 121, we find nothing to change the views here discussed, because that case seeks to re-establish the rights of the wife to make a contract with her husband, but does not in any manner relieve the husband from his obligation for necessities to his wife or his family, and the doctrine is laid down that there is no implication of obligation to the wife merely because of services rendered.

In the second ground of error in the instant case it is charged that under the record in the case the following instruction was erroneous, to the prejudice of the plaintiff in error:

“No vehicle shall stop on any road or highway, except with front and rear right wheels within one foot of the right hand side of the improved portion of the road, nor in any such way as to obstruct a free passage of the road; provided that nothing in this section shall be held to apply whenever a driver of a vehicle is compelled or permitted to stop by reason of other lawful regulations, or emergency.” (Section 6310-27, General Code; 110 O. L., 137, effective July 26, 1923.)

It is unchallenged in the record that the automobile of plaintiff below was on the left-hand side of the road when the collision occurred. The instruction above quoted could well be taken by the jury as an excuse or justification for being on the wrong side of the highway at the time of the accident, notwithstanding Section 6310-17 of the General Code of Ohio, which is as follows:

“Vehicles shall keep to the right side of the road or highway except when necessary to turn to the left in crossing the road or highway or in overtaking and passing another vehicle; provided that, in passing a vehicle going in the same direction such passing shall be made as close to the right hand side of the road or highway as practicable.” 110 O. L., 136.

The instruction given leaves this material fact out of consideration, and therefore its tendency is to permit the jury to justify the act of leaving the right side of the railroad for the left, notwithstanding the provisions of the Code, and, in relation to this element in the case, the court, in describing Section 6310-17, used the following language:

“The violation of this section of the statute without excuse therefor is in law prima facie evideuce of negligence on the part of the driver of the automobile.”

Concededly, the court was in error here, because the doctrine is settled in Schell v. Du Bois, Adm’r., 94 Ohio St., 93, 113 N. E., 664, L. R. A., 1917A, 710, that the violation of a statute is negligence per se, and not prima facie negligence. The distinction is obviously prejudicial to the plaintiff in error, for to be guilty of negligence per se is far more culpable than to be guilty of prima facie negligence, where the act itself may be justified or removed by the presumption, a thing which cannot be done in a case of negligence per se, at least in so far as the present case is concerned. This question was one of law solely, but it was left for the determination of the jury, as will be observed by the use of the following language of the court:

“If you are of the opinion that he was negligent, and that his negligence was the sole cause of the injury to his wife, the plaintiff in this case, your verdict must be for the defendant.”

Holding these views, the judgment of the court is hereby reversed, and the cause remanded.

Judgment reversed and cause remanded.

Vickery and Levine, JJ., concur.  