
    [S. F. No. 26.
    Department Two.
    July 31, 1896.]
    MICHAEL McLAUGHLIN, Respondent, v. SAN FRANCISCO AND SAN MATEO RAILWAY COMPANY, Appellant.
    Negligence—Damages—Indebtedness Incurred for Physician—Expenditure—Pleading—Evidence — Variance.—In case of personal injury of a plaintiff through the negligence of the defendant, under a proper .pleading the injured party may recover for such necessary medical expenses as he may have become liable to pay, though not in fact paid before suit brought; but where the complaint avers that plaintiff has necessarily expended a specified sum in doctor’s bills, he cannot prove that he has incurred a physician’s bill, or recover the amount thereof under such pleading.
    Appeal from a judgment of the Superior Court of the City and Count)7 of San Francisco and from an order denying a new trial, John Hunt, Judge.
    The facts are stated in the opinion.
    
      Morrison, Stratton & Foerster, for Appellant.
    An allegation that expenses have been paid is not sustained by proof that they have been incurred and not paid. (Prichet v. Boevey, 1 Cromp. & M. 775, 776; Ward v. Haws, 5 Minn. 440; Murphy v. Mulgrew, 102 Cal. 547; 41 Am. St. Rep. 200; Donnelly v. Hufschmidt, 79 Cal. 74; Meeks v. Southern Pac. R. R. Co., 61 Cal. 149.) To expend is to pay or lay out, use up, disburse, spend, or to spend money on time. (Standard Dictionary, Webster’s International Dictionary.)
    
      E. Crisp, for Respondent.
    A liability on the part of an inj ured party to pay for medical or surgical services, occasioned by the negligence or fault of the offending party, can be estimated and allowed for by the jury in making up their verdict for damages, though such services have not been in fact paid. (Donnelly v. Hufschmidt, 79 Cal. 74; 3 Sutherland on Damages, 2d ed., sec. 1250, and cases cited.) The word “ expended ” includes debts or unpaid obligations. (Sullivan v. Triunfo Min. Co., 39 Cal. 459.)
   Searls, C.

This is an action to recover damages for injuries sustained by pMntiff while a passenger upon the electric railroad of the defendant, as is alleged, through the negligence of said defendant.

Plaintiff had a verdict and judgment for one thousand dollars, from which judgment and from an order denying its motion for a new trial defendant appeals.

A single question is raised on the appeal. Plaintiff, in his complaint, after averring the nature and extent of his injuries, averred “that in attempting to be cured he has necessarily expended in doctor’s bills the sum of $750 (seven hundred and fifty dollars).”

Under this allegation the plaintiff was permitted to prove against the objection of defendant, not that he had expended seven hundred and fifty dollars, or any part thereof, but that he had incurred an indebtedness therefor which was not paid.

Counsel for defendant afterward moved to strike out the evidence, which was refused.

The court also instructed the jury, in substance, that if, through the negligence of the defendant, plaintiff sustained injuries whereby medical services became necessary, he was entitled to the reasonable expense incurred therefor, and that the fact that plaintiff had not paid the bill would not preclude his recovery of the expenses so incurred.

In all this, we think, the court below erred. In cases of personal injury of a plaintiff, through the negligence of a defendant, there is no doubt but that, under a proper pleading, the injured party may recover for such necessary medical expenses as he may have become liable to pay, though not in fact paid before suit brought. (Donnelly v. Hufschmidt, 79 Cal. 74.)

It will be observed here, however, that the allegation of the complaint is that he (the plaintiff) “necessarily expended in doctor’s bills the sum of,” etc.

To expend is to pay out, to disburse, etc., and implies an act performed, a thing accomplished. To incur a liability to do the same thing is quite different.

As was said by McFarland, J., in his concurring opinion in Donnelly v. Hufschmidt, supra:The law is, I think, that a plaintiff, in such a case, cannot prove that he has incurred a physician’s bill under an allegation that he has paid it.” (Citing Ward v. Hawes, 5 Minn. 440; Pritchet v. Boevey, 1 Cromp. & M. 775; Jones v. Lewis, 9 Dowl. Pr. R. 143; Sedgwick on Damages, 7th ed., 197, note a. See, also, Murphy v. Mulgrew, 102 Cal. 547; 41 Am. St. Rep. 200.)

We are of opinion the evidence that plaintiff had incurred a liability to pay seven hundred and fifty dollars was not admissible under the allegation of his complaint that he had expended such sum, and we recommend that the judgment and order appealed from be reversed and the cause remanded for a new trial, with leave to plaintiff to amend his complaint if he shall be so advised.

Vancliee, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, and the cause remanded for a new trial, with leave to plaintiff to amend his complaint if he shall be so advised.

McFarland, J., Henshaw, J., Temple, J.  