Gobel v. Rinio , 122 Mont. 235 ( 1948 )

The rule in this jurisdiction governing the proof required to entitle a plaintiff in an action to recover, as an element of damages, hospital and medical services necessarily incurred and specially pleaded is as stated by this court in Storm v. City of Butte, 35 Mont. 385 at pages 398, 399, 89 P. 726, 728, wherein this court said: "Authorities may be found which hold that evidence showing the amount paid for such services, the extent of the injuries, the particular services rendered, and the number of visits made by the physician, is sufficient to go to the jury under proper instructions, upon the theory that the facts shown by such evidence form a substantial basis from which the jury may determine whether or not the charge as made was in fact reasonable. But the rule of law in such a case is: `The measure of the recovery under this head is not necessarily the amount paid for medical attendance. The reasonableness of the charges must be established. The reasonable charges intended are the reasonable charges of the profession generally, and not the usual charges of the particular physician or surgeon who is testifying on that issue.' 6 Thompson on Negligence, 7329."

For more than forty years such has been the law of this state. It is still the law of this jurisdiction. In accordance with such rule of law, I am of the opinion that this cause should be remanded to the district court with directions to grant a new trial unless within a specified time the plaintiff consents to a modification of the judgment by deducting from the amount thereof, as of the date of its entry, the reasonable amount of the hospital and medical expenses pleaded but not proven.