# Maryland Casualty Co. v. Marshall > Court of Appeals of Texas · February 13, 1929 · 14 S.W.2d 337 URL: https://www.frixlaw.com/law-library/cases/9833488 ## Case - **Full name:** Maryland Casualty Co. v. Marshall. - **Court:** Court of Appeals of Texas - **Decided:** February 13, 1929 - **Citations:** 14 S.W.2d 337 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Hall - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9833488 ## Opinion text *342 On Motion for Rehearing. By the original opinion, we affirmed this . judgment upon condition that the. appellee enter a remittitur of $780.70 within 20 .days. Both parties have filed motions for rehearing. Upon a review of the record, we find that the court entered judgment for $7,879.03 in a lump sum, with interest thereon from the date of the judgment. This judgment evidently includes the item of $780.70, or a part thereof, which it appears was for surgeon’s charges and hospital fees paid by the appellee in California, incident to an operation upon his injured foot and leg. The record throws no light upon the question whether the court allowed the whole amount claimed for surgeon’s fees and hospital charges, or only a portion of these items. The only proof introduced upon this ground of appellee’s recovery was the testimony of Dr. Southall, a resident of Hutchinson county. While he testified that the charges were reasonable, he also stated that there was no standard of charges by surgeons generally accepted through the country; that each surgeon fixes his own compensation, and that the charges for such services depended upon the skill and ability of the surgeon, as well as upon the financial ability of the patient to pay; that one patient might be charged one amount, and that another patient, who was wealthy, was frequently charged as much as. ten times that sum for the very same services. These facts render the testimony of Dr. Southall so uncertain upon the issue of the reasonableness of the charges that it should not be accepted in support of the judgment, even though a Texas surgeon was otherwise qualified to testify as to the value of such services in a foreign state — an issue which we do not decide. In the case of Petroleum Casualty Co. v. Green (Tex. Civ. App.) 11 S.W.(2d) 388 , Chief Justice Gallagher holds that competent proof of the reasonableness of such charges is necessary before a recovery can be properly awarded. No issue was submitted to the jury as to the present value of the appellee’s claim, when paid in a lump sum. In other words, the jury was not asked to find what rate of discount should apply to the appellee’s claim in awarding a judgment for a lump sum. The statutes do not fix this rate of discount. The full amount of the appellee’s recovery, if paid weekly for 401 weeks at $20 per week, would have been $8,020, and while the record discloses that this amount was discounted at some rate, we are not able to determine what that rate was, and the rule seems to be that the rate of discount to be applied is a question of fact, to be determined in each case by the court or jury considering the facts. Texas Employer’s Insurance Association v. Herzing (Tex. Civ. App.) 9 S.W.(2d) 457 ; Lumbermen’s Reciprocal Association v. Behnken (Tex. Civ. App.) 226 S. W. 154 ; Id., 112 Tex, 103, 246 S. W. 72 , 28 A. L. R. 1402; Consolidated Underwriters v. Saxon (Tex. Civ. App.) 250 S. W. 447 ; Id. (Tex. Com. App.) 265 S W. 143; Western Indemnity Co. v. Milam (Tex. Civ. App.) 230 S. W. 825 . Erom these decisions, the conclusion must be drawn that the court should not only submit to the jury whether the claimant is entitled to a lump sum settlement, and in the event the jury finds that the injured party is entitled to a lump sum settlement, then the issue should be submitted inquiring as to the rate of discount or the present value of the claim, if paid in a lump sum. After a careful consideration of the motions for rehearing, we have concluded that the judgment is not supported by the findings of the jury, and that the court could not estimate the present value of the claim when paid in a lump sum, and because there is no finding as to what would be reasonable compensation for the California surgeon’s fees and hospital fees, the proper disposition to be made of the case is to reverse the judgment and remand the case for another trial; and it is accordingly so ordered. Reversed and remanded. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9833488. Public record. Not legal advice.