Anderson v. Caulk

• Decision Date: 05 April 1928
• Docket Number: (No. 2125.)
• Citation: 5 S.W.2d 816
• Parties: ANDERSON et al. v. CAULK.
• Court: Texas Court of Appeals

5 S.W.2d 816

ANDERSON et al. v. CAULK.

(No. 2125.)

Court of Civil Appeals of Texas. El Paso.

April 5, 1928.

Rehearing Denied May 3, 1928.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Suit by John R. Caulk against T. D. Anderson and others, as trustees and independent executors of the estate of George W. Brackenridge, deceased. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Denman, Franklin & Denman, of San Antonio, for appellants.

Thos. M. Pierce, of St. Louis, Mo., and F. C. Davis, Ben H. Kelly, and Emmett B. Cocke, all of San Antonio, for appellee.

WALTHALL, J.

Appellee, John R. Caulk, brought this suit against T. D. Anderson, Thomas H. Franklin, Frank G. Huntress, and M. C. Judson, as trustees and independent executors of the estate of George W. Brackenridge, deceased, by petition filed on the 16th day of December, 1921, in which petition he sought to recover the sum of $10,000, alleged to be due by the deceased, George W. Brackenridge, for medical and surgical services rendered to the said Brackenridge, the petition admitting the payment by the said Brackenridge during his life of $5,000. The petition was amended on the 31st day of May, 1927, by a second amended original petition, in which petition it was alleged for the first time since the filing of the original petition that the plaintiff was entitled to recover for such medical and surgical services the sum of $15,000, less the sum of $5,000 admitted in the petition to have been previously paid by the said Brackenridge. The defendants answered by demurrers and exceptions, by plea of the statutes of limitations of two and four years as to the additional $5,000 sued for in said second amended original petition. They also denied generally all of the allegations in plaintiff's petition; averred that the $5,000 paid had been paid and received in full settlement for plaintiff's services; set up in detail the circumstances under which the payment was made and received by plaintiff, and that under such circumstances plaintiff was estopped from claiming anything above said $5,000; averred that the said $5,000 was paid by the said Brackenridge in full settlement, and that, if it was not received by plaintiff in full settlement, nevertheless it had been had and held by him knowing that the said Brackenridge intended it to be in full settlement, and that in truth and in fact plaintiff's services were not worth exceeding the sum of $1,000, and that if such payment was not to be treated as a settlement the defendants had a right to recover of plaintiff the amount paid above said $1,000, with interest; that the said Brackenridge had paid all hospital charges, nurses charges, etc., setting out in detail the amounts paid, all of which payments were over and above the $5,000 paid direct to plaintiff as above shown. The plaintiff excepted to certain portions of the answer. The demurrer and exceptions of defendants were overruled and the ruling duly excepted to, the exceptions of plaintiff were sustained, and to this ruling defendants duly excepted. Trial was had before a jury on special issues submitted by the court. These special issues were answered favorably to plaintiff by the jury and verdict given for $10,000 as the value of plaintiff's services. Against this amount the court in its judgment credited the $5,000 paid and rendered judgment in favor of plaintiff for the sum of $7,279.17, covering principal and interest on the unpaid $5,000, the interest being calculated at 6 per cent. per annum from and after the 1st day of January following the alleged rendition of services by plaintiff to said Brackenridge. Motion for new trial was duly filed within the time required by law and amended motion subsequently filed. The motion being overruled by the court, the ruling of the court was duly excepted to and notice of appeal given.

Opinion.

There are no allegations in appellee's petition to the effect that he qualified to practice his profession in Texas as required by the statutes of this state and registered as required by those statutes; nor is it alleged that appellee had qualified and registered as required by statutes in Missouri, where his professional services were rendered, nor that the laws of Missouri did not require such qualification or registration, nor is it alleged that the laws of that state differed from the Texas statutes, nor that if they differed, in what respects they differed. The second proposition points out that there is no evidence in the record showing that appellee had qualified as required by the statute to practice medicine under the statutes of either state, nor that the laws of Missouri were different from the statutes of Texas in the particular matters involved. Appellants pleaded a general demurrer, and special exception to appellee's petition, which the trial court overruled, and appellants, under propositions 1 and 2, assign error to the overruling of their general demurrer and special exception. The special exception reads:

"They specially except thereto and say that it appears upon the face of said petition that no right to recover on the allegations in said petition is shown in the plaintiff as against the estate of George W. Brackenridge, deceased, or these executors as executors or trustees of said estate."

The special exception, under rule 18, rules for the district and county courts, we regard as a general and not a special exception.

The courts in this state and elsewhere are not uniform in their holdings on the issue presented in appellant's first proposition. Some of our courts hold, as in Swift v. Kelly, 63 Tex. Civ. App. 270, 133 S. W. 901, that it is necessary for one suing to recover for medical services to allege and prove such compliance with the laws regulating the practice of medicine, and that a failure to so allege in the petition is fatal on general demurrer thereto; others hold that it is a matter defensive, as in Texas Employers' Ins. Ass'n v. Drummond et al. (Tex. Civ. App.) 267 S. W. 335, affirming the judgment of the trial court by a majority opinion of this court. In that case a dissenting opinion was filed, the case of Swift v. Kelly and other Texas cases were reviewed, a writ of error was granted, and in Texas Employers' Ins. Ass'n v. Drummond, 279 S. W. at p. 1116, in a memorandum opinion, Judge Bishop of the Commission of Appeals, Section A, says:

"After careful consideration of the entire record, we have concluded that the affirmance of the judgment is correct. We approve the holding of the court on the questions discussed in the majority opinion, and recommend that the judgments be affirmed."

The recommendation of the Commission of Appeals was adopted by the Supreme Court. We think we need not discuss the proposition further, in view of the disposition we think to make of the case as the petition can be amended and the difficult question eliminated.

Appellants insist that there is no evidence in the record that appellants, at any time, were either the independent executors or trustees of the estate of George W. Brackenridge, deceased, and for that reason it was error to refuse to give special requested instructions of appellants to return a verdict in their favor.

One of the appellants, Mr. Frank G. Huntress, a witness for appellants, testified:

"I am one of the trustees of his [Brackenridge] estate, so designated by him. * * * The secretary of the trustees, Mr. Anderson, is one of the trustees, is supposed to be in custody of the archives and personal effects of Col. Brackenridge. * * * He is also secretary of the trustees' committee."

The above is all the reference we find in evidence on the question presented. The appellants, sued as trustees and independent executors of the estate of Col. Brackenridge, are alleged to be Thomas D. Anderson, Thomas H. Franklin, Frank G. Huntress, and M. C. Judson. Judgment was rendered that:

"The plaintiff, John R. Caulk, do have and recover of and from the defendants T. D. Anderson, Thomas R. Franklin, Frank G. Huntress, and M. C. Judson, not personally, but in their capacities as trustees and independent executors of the estate of George W. Brackenridge, deceased, and of the estate of George W. Brackenridge, deceased, the sum of $7,279.17," and interest and costs.

If it be conceded that the above evidence is sufficient to identify and show that Huntress and Anderson are "trustees and independent executors of the estate of George W. Brackenridge, deceased, and acting as such under the provisions of the last will and testament of the said George W. Brackenridge," as stated in the second amended original petition upon which the trial was had, the evidence does not show that either Franklin or Judson was such trustee or executor.

Articles 3403 and 3735, R. C. S. 1925, provide the method of making the proof of the appointment and qualification of appellants as trustees and executors of the estate, and such appointment and qualification, we think, should be followed by proof that appellants, at the time of the trial, were acting as such trustees and executors in the matter of the estate, and not leave the issue to inference or innuendo. Unless the proof shows that appellants, at the time of the trial, were the trustees and executors of the estate, no judgment could properly have been rendered against them as such. American Loan & Mortgage Co. v. Bangle (Tex. Civ. App.) 153 S. W. 662. We do not mean to hold that the above-recited articles of the statute furnish the only and exclusive rules by which the liability of appellants in their representative capacity can be shown, but we do hold that it must be made to appear that appellants were, at the time of the trial, such representatives of the estate. We might add, in view of another trial, that a trustee or executor derives no authority over the estate by reason of his appointment as such trustee or executor, by the terms of the will itself. He receives...