81 Cal. 370, 11902, Gardner v. Tatum

Docket Nº:11902
Citation:81 Cal. 370, 22 P. 880
Opinion Judge:PATERSON, Judge
Party Name:H. H. GARDNER, Respondent, v. H. L. TATUM et al., Appellants
Attorney:Langhorne & Miller, for Appellants. J. F. Wendell, and S. G. Hilborn, for Respondent.
Judge Panel:JUDGES: In Bank. Paterson, J. Sharpstein, J., McFarland, J., Works, J., and Beatty, C. J., concurred. Fox, J., dissenting. Thornton, J., also dissented. FOX
Case Date:November 30, 1889
Court:Supreme Court of California
 
FREE EXCERPT

Page 370

81 Cal. 370

22 P. 880

H. H. GARDNER, Respondent,

v.

H. L. TATUM et al., Appellants

No. 11902

Supreme Court of California

November 30, 1889

Rehearing denied.

Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

COUNSEL:

Langhorne & Miller, for Appellants.

J. F. Wendell, and S. G. Hilborn, for Respondent.

JUDGES: In Bank. Paterson, J. Sharpstein, J., McFarland, J., Works, J., and Beatty, C. J., concurred. Fox, J., dissenting. Thornton, J., also dissented.

OPINION

PATERSON, Judge

[22 P. 881] Plaintiff, who is a physician and surgeon, was called in by defendants, and began to treat their

Page 371

employee, Cook, on March 8, 1883. He continued to visit the patient until October 2, 1883. On September 24th he made a demand upon defendants for the sum of $ 2,386. Thereupon defendants notified him that they considered his charges exorbitant, and that they would not be responsible for any further services in behalf of Cook. He then brought this action to recover the sum of $ 2,406, alleged to be the reasonable value of his services. The jury found a verdict in his behalf for the sum of $ 1,800, and judgment was entered for that amount, and $ 318 costs and disbursements. The defendants moved for a new trial, specifying several errors of law, and claiming that the verdict was excessive. The defendants convinced the learned judge who heard and decided the motion that the verdict was excessive, and not warranted by the evidence, and he thereupon caused to be entered a conditional minute order, of which the following is a copy: "The motion for a new trial herein will be denied, provided that plaintiff, within thirty days from this date, offer to remit the sum of eight hundred dollars from the amount of the verdict herein; provided, also, that the defendants shall agree to accept said verdict and judgment so modified as a finality, said offer to remit not to be binding upon the plaintiff unless accepted by defendants as a finality. Said motion for a new trial to be granted unless said offer to remit by plaintiff be so made."

In accordance with the order, plaintiff filed an offer to remit the sum of eight hundred dollars from the amount of the verdict, provided the defendants should accept the verdict and judgment so modified as a finality. The defendants elected not to accept the terms of the order, whereupon the court made an order denying the motion in the following language: "It appearing that plaintiff has offered to remit said sum as directed, and within the time directed, and no error appearing in the record, and the verdict as rendered being sustained by a preponderance

Page 372

of evidence, unless as to the amount of the verdict, it is hereby ordered that the motion for a new trial be and the same is hereby denied."

We are of opinion that the court erred in denying the motion. If the verdict was for an excessive amount, and it is made clear by the language of both orders that the court believed it was, -- and the evidence, we think, fully sustains the court in such belief, -- defendants were entitled to have it reduced without the imposition of any terms upon them, and without...

To continue reading

FREE SIGN UP