
    Martin J. Coyne, Appellant, v. William T. Campbell, Respondent.
    Argued May 14, 1962;
    decided June 12, 1962.
    
      
      John J. Nicit for appellant.
    I. Although the medical and nursing services be regarded arguendo as gratuitous, the values thereof are nonetheless recoverable; the contrary holding of Drinkwater v. Dinsmore (80 N. Y. 390) should be limited to its facts or overruled. (Bethlehem Props, v. McGovern, 161 Misc. 111; Landon v. United States, 197 F. 2d 128; Hudson v. Lazarus, 217 F. 2d 344.) II. The medical and nursing services were in fact supported by consideration; hence Drinkwater v. Dinsmore (80 N. Y. 390) is distinguishable.
    
      Albert E. Bond for respondent.
    In the field of negligence, a principle of payment for gratuitous service is contrary to reason, logic, law and the interests of society. (Seidel v. Maynard, 279 App. Div. 706; Healy v. Rennert, 9 N Y 2d 202; Barnes v. Keene, 132 N. Y. 13; Drinkwater v. Dinsmore, 80 N. Y. 390; Leeds v. Metropolitan Gas-light Co., 90 N. Y. 26; Clarke v. Eighth Ave. R. R. Co., 238 N. Y. 246; Zimber v. Kress, 225 App. Div. 16; Employers’ Liab. Assur. Corp. v. Daley, 271 App. Div. 662, 297 N. Y. 745; Brinkman v. Oil Transfer Corp., 300 N. Y. 48; Steitz v. Gifford, 280 N. Y. 15; Clough v. Schwartz, 94 N. H. 138; Rayfield v. Lawrence, 253 F. 2d 209.)
   Froessel, J.

On July 5, 1957 plaintiff sustained a whiplash injury when his automobile was struck in the rear by a motor vehicle driven by defendant. Inasmuch as plaintiff is a practicing physician and surgeon, he received medical treatment, physiotherapy and care from his professional colleagues and his nurse, and incurred no out-of-pocket expenses therefor. Nevertheless, in his bill of particulars, he stated that his special damages for medical and nursing care and treatment amounted to $2,235. The trial court ruled that the value of these services was not a proper item of special damages, and that no recovery could be had therefor since they had been rendered gratuitously. He thus excluded evidence as to their value. The sole question here presented is the correctness of this ruling.

In the leading case of Drinkwater v. Dinsmore (80 N. Y. 390) we unanimously reversed a plaintiff’s judgment entered upon a jury verdict, because defendant was precluded from showing that plaintiff had been paid his wages by his employer during the period of his incapacitation. We held such evidence admissible on the theory that plaintiff was entitled to recover only his pecuniary losses, of which wages gratuitously paid were not an item. With respect to medical expenses, we stated (p. 393) that the plaintiff must show what he paid the doctor, and can recover only so much as he paid or was bound to pay ”, Although decided more than 80 years ago, the Drinhwater case has continuously been and still is recognized as the prevailing law of this State (Clarke v. Eighth Ave. R. R. Co., 238 N. Y. 246, 253; De Paulis v. United States, 193 F. Supp. 7, 8 [1961]; Leon v. United States, 193 F. Supp. 8,13 [1961]; 13 N. Y. Jur., Damages, § 151, p. 657; 2 Clark, New York Law of Damages, § 603, p. 1051).

As recently as 1957, the Legislature declined to enact a proposed amendment to the Civil Practice Act, the avowed purpose of which (1957 Report of N. Y. Law Rev. Comm., p. 223) was to abrogate the rule of Drinkwater v. Dinsmore, 80 N. Y. 390 (1880) and to conform New York law to the rule followed in most states that payments from collateral sources do not reduce the amount recoverable in a personal injury action.” The proposed legislation (Sen. Int. No. 264, Assem. Int. No. 361) was supported by a comprehensive study of the Law Revision Commission (1957 Report, pp. 225-255), which criticized the New York rule as unfair, illogical and unduly complex ” (id., p. 227). The Legislature and not the judiciary is the proper body to decide such a policy question involving the accommodation of various interests. We should not now seek to assume their powers and overrule their decision not to change the well-settled law of this State. No matter what may be the rule in other jurisdictions, Drinhwater is still the law in this State.

We find no merit in plaintiff’s contention that the medical and nursing services for which damages are sought were supported by consideration. Plaintiff testified that he did not have to pay for the physiotherapy, and his counsel confirmed the fact that these various items were not payable by the doctor nor were they actual obligations of his, and that he will not have to pay them ”.

Plaintiff’s colleagues rendered the necessary medical services gratuitously as a professional courtesy. It may well be that as a result of having accepted their generosity plaintiff is under a moral obligation to act for them in a similar manner should his services ever be required; such need may never arise, however, and in any event such a moral obligation is not an injury for which tort damages, which ‘ ‘ must be compensatory only ’ ’ (Steitz v. Gifford, 280 N. Y. 15, 20), may be awarded. A moral obligation, without more, will not support a claim for legal damages. In our recent decision in Cariello v. City of New York (11 N Y 2d 788) we rejected the claims for salary differentials by Justices and former Justices of the Municipal Court of the City of New York despite the fact that the statute authorizing the presentment of such claims expressly stated that “ The payment of any such claim shall be deemed payment as a moral obligation of such city or county ” (L. 1955, ch. 842).

We are also told that the physiotherapy treatments which plaintiff received from his nurse consumed approximately two hours per week, and that they were given during the usual office hours for which she received her regular salary. Plaintiff does not claim that he was required to or in fact did pay any additional compensation to his nurse for her performance of these duties, and, therefore, this has not resulted in compensable damage to plaintiff.

Finally, we reject as unwarranted plaintiff’s suggestion that our decision in Healy v. Rennert (9 N Y 2d 202, 206) casts doubt on the continued validity of the Drinkwater rule in a case such as the instant one. In Nealy, we held that it was error to permit defendants to establish on cross-examination that plaintiff was a member of a health insurance plan and that he was receiving increased disability pension benefits. In that case, however, the plaintiff had given value for the benefits he received; he paid a premium for the health insurance, and had worked for 18 years, in order to be eligible for the disability retirement benefits. We were not confronted with — and did not attempt to pass upon—a situation where the injured plaintiff received wholly gratuitous services for which he had given no consideration in return and which he was under no legal obligation to repay. In short, insurance, pension, vacation and other benefits which were contracted and paid for are not relevant here. Gratuitous services rendered by relatives, neighbors and friends are not compensable.

This is not a case such as Woods v. Lancet (303 N. Y. 349) or Bing v. Thunig (2 N Y 2d 656) where we declined to perpetuate harsh rules of law found not to be in “ accordance with present day standards of wisdom and justice” (Woods v. Lancet, supra, p. 355), and which completely denied relief to an injured plaintiff. It would hardly be fair in a negligence action, where damages are compensatory and not punitive, to change the Drinlcwater rule of long standing in the face of the Legislature ’s refusal to do so, and to punish a defendant by requiring him to pay plaintiff for a friend’s generosity. If we were to allow a plaintiff the reasonable value of the services of the physician who treated him gratuitously, logic would dictate that the plaintiff would then be entitled to the reasonable value of such services, despite the fact that the physician charged him but a fraction of such value. Such a rule would involve odd consequences, and in the end simply require a defendant to pay a plaintiff the value of a gift.

The judgment appealed from should be affirmed.

Chief Judge Desmond (concurring).

The reason why this plaintiff cannot include in his damages anything for physicians’ bills or nursing expense is that he has paid nothing for those services. It has always been the rule in tort cases that * ‘ damages must be compensatory only ” (Steitz v. Gifford, 280 N. Y. 15, 20). If this were—-and it is not — a case of payment from collateral source ”, Healy v. Rennert (9 N Y 2d 202) would be authority for recovery.

Settled and consistent precedents provide the answer to the question posed by this appeal. Neither justice nor morality require a different answer. Diminution of damages because medical services were furnished gratuitously results in a windfall of sorts to a defendant but allowance of such items although not paid for would unjustly enrich a plaintiff. í I vote to affirm.

Fuld, J. (dissenting).

It is elementary that damages in personal injury actions are awarded in order to compensate the plaintiff, but, under an established exception, the collateral source doctrine—which we recognized in Healy v. Rennert (9 NY 2d 202) — a wrongdoer will not be allowed to deduct benefits which the plaintiff may have received from another source. To put the matter broadly, the defendant should not be given credit for an amount of money, or its equivalent in services, received by the plaintiff from other sources. “ The rationale of the collateral source doctrine in tort actions ”, it has been said, ‘@ is that a tort-feasor should not be allcnved to escape the pecuniary consequences of his Avrongful act merely because his victim has received benefit from a third party ” (Note, 26 Fordham L. Rev. 372, 381).

In the Healy case (9 N Y 2d 202, supra), this court held that, if one is negligently injured by another, the damages recoverable from the latter are diminished neither (1) by the fact that the injured party has been indemnified for his loss by insurance effected by him nor (2) by the fact that his medical expenses were paid by HIP or some other health insurance plan (p. 206). In the case before us, the plaintiff suffered injuries and required medical and nursing care. He had no health insurance, but he received the necessary medical care and services from fellow doctors without being required to pay them in cash. In addition, he received physiotherapy treatments from the nurse employed by him in his office and to whom he, of course, paid a salary.

I fail to see any real difference between the situation in Healy v. Rennert and the case now before us. In neither case was the injured person burdened with any charges for the medical services rendered and, accordingly, when the defendant is required to pay as “ damages ” for those services or their value, such damages are no less “compensatory” in the one case than in the other. Nor do I understand why a distinction should be made depending upon whether the medical services were rendered gratuitously or for a consideration. What difference should it make, either to the plaintiff or to the defendant, whether an injured plaintiff has his medical bills taken care of by an insurer or by a wealthy uncle or by a fellow doctor? Certainly, neither the uncle, who acted out of affection, nor the doctor, impelled by so-called professional courtesy, intended to benefit the tort-feasor.

The crucial question in cases such- as this is whether the tort-feasor should, in fairness and justice, be given credit for the amounts, or their equivalent in services, which the plaintiff has received from some collateral source. The collateral source doctrine is not, and should not be, limited to cases where the plaintiff had previously paid consideration (in the form of insurance premiums, for instance) for the benefits or services which he receives or where there has been a payment of cash or out-of-pocket expenses. The rationale underlying the rule is that a wrongdoer, responsible for injuring the plaintiff, should not receive a windfall. Were it not for the fortuitous circumstance that the plaintiff was a doctor, he would have been billed for the medical services and the defendant would have had to pay for them. The medical services were supplied to help the plaintiff, not to relieve the defendant from any part of his liability or to benefit him. (See, e.g., Hudson v. Lazarus, 217 F. 2d 344, 346; Nashville, Chattanooga & St. L. Ry. Co. v. Miller, 120 Ga. 453, 457; Pennsylvania Co. v. Marion, 104 Ind. 239, 244; Wells v. Minneapolis Baseball & Athletic Assn., 122 Minn. 327, 332-334; see, also, Ann., 128 A. L. R. 686, 687.) It should not matter, in reason, logic or justice, whether the benefit received was in return for a consideration or given gratuitously, or whether it represented money paid out or its equivalent in services.

The rule reflected by the decision in Drinkwater v. Dinsmore (80 N. Y. 390) is court made and, accordingly, since I believe — as did the Law Revision Commission (1957 Report of N. Y. Law Rev. Comm. [N. Y. Legis. Doc., 1957, No. 65G-]; see, also, Note, 26 Fordham L. Rev. 372, 380 et seq.) —that it is not only completely opposite to the majority rule ” (Law Rev. Comm. Report, p. 225), but also unfair, illogical and unduly complex ” (ibid, p. 227), I cannot vote for its perpetuation. Indeed, as I have already indicated, an even stronger case for its repudiation is made out by our recent decision in Healy v. Rennert (9 N Y 2d 202, supra).

I would reverse the judgment appealed from and direct a new trial.

Judges Dye, Van Voorhis, Burke and Foster concur with Judge Froessel ; Chief Judge Desmond concurs in a separate opinion; Judge Fuld dissents in an opinion.

Judgment affirmed. 
      
      . I shall assume that in this case the doctors’ services were given gratuitously, though a strong argument could be made to the contrary, that is, that they were supported by consideration in that the plaintiff came under a duty to reciprocate and render medical services to his colleagues. Be that as it may, though, I see no basis for labeling the physiotherapy treatments given by the plaintiff’s salaried nurse gratuitous. They were given during the nurse’s normal working day for which she received wages from the plaintiff. Had she not been required to give such treatments, she would undoubtedly have been free to perform other work for the plaintiff.
     
      
      . It is not amiss to note that the courts of a number of other jurisdictions permit the plaintiff to recover from the defendant the reasonable value of nursing care and services furnished him by his wife or other members of his family. (See, e.g., Strand v. Grinnell Auto. Garage Co., 136 Iowa 68, 70; Wells v. Minneapolis Baseball & Athletic Assn., 122 Minn. 327, 332-334, supra; Houston & Tex. Cent. Ry. Co. v. Gerald, 60 Tex. Civ. App. 151, 157-158; see, also, Ann., 128 A. L. R. -686.) If the injured person is a man of means, he can hire nurses and he will be reimbursed for the amounts which he pays them in wages. Why should the rule be different if, unable to afford nurses, he has to rely upon his wife or others close to him for the necessary nursing services ? There is certainly no reason why the defendant should be subject to less damages when sued by a poor man rather than by one who is rich.
     