In Re Rosengren’s Estate, 8157
| Citation | 66 S.D. 138,279 N.W. 540 |
| Decision Date | 06 May 1938 |
| Docket Number | 8157 |
| Court | South Dakota Supreme Court |
| Parties | In Re CHARLES ROSENGREN’S ESTATE JOHN A. KITTELSON, Appellant, v. JOHN T. MEDIN, Respondent. |
JOHN T. MEDIN, Respondent. South Dakota Supreme Court Appeal from Circuit Court Minnehaha County, SD Hon. L.L. Fleeger, Judge #8157—Reversed Danforth & Davenport, Sioux Falls, SD Attorneys for Appellant. Jones, Matthews & Fitzpatrick, Sioux Falls, SD Odean Hareid, Sioux Falls, SD Attorneys for Respondent. Opinion Filed May 6, 1938
Charles Rosengren died testate July 9, 1935. Hon. John T. Medin, the executor named in the last will and testament, applied for letters testamentary to the county court of Minnehaha County, SD Thereafter, by proceedings in the county court, he was appointed executor, qualified, and entered upon his duties as such.
Dr. John A. Kittelson, treated Rosengren during his last sickness. Said services commenced on November 22, 1934, and terminated on the day of Rosengren’s death. A verified claim, in proper form, was presented to the executor for allowance for the services rendered. The executor rejected the claim. Thereafter, an appeal was taken to the circuit court and tried in the circuit court before a jury. At the close of plaintiff’s evidence, the court directed a verdict in favor of the executor, apparently on the ground that the claimant could not prove the claim by the admission of his books of account, because of the provisions of section 2717 of the 1919 Revised Code. Upon rendition of the directed verdict, the court entered a judgment dismissing the claimant’s claim. Thereafter, the claimant presented a motion for new trial. The trial court overruled the motion for new trial. The claimant has appealed from the order and judgment.
The account, as disclosed by the records, contains various items of medical service rendered to the deceased, Charles Rosengren, during his last illness. The first was a house call on November 21, 1934, and on July 9, 1935 (the last), there were two visits. Between these two dates there appeared to be a number of entries covering visits and the charges for the services. Also, entries of some payments for services rendered. A number of treatments, such as X-rays, injection, and certain tests are shown by the account offered in evidence.
Mr. and Mrs. H. T. Brookfield, who testified as to the condition of Mr. Rosengren’s health, had known decedent for considerable time. It appears that Rosengren was in a hospital for some time and that about November 8, 1934, he came to live with the Brookfields. There is evidence as to a talk with Rosengren about the employment of a doctor. As a result of said conversation, the deceased employed the appellant, who commenced making professional calls on November 22, 1934. The testimony of Mr. Brookfield, in substance, is to the effect that Dr. Kittelson came to the house a part of the time every day for several days. There is also some testimony to the effect that later on the doctor’s calls averaged two or three times a week. The witness stated that he observed that Rosengren paid Dr. Kittelson part of the time and part of the time he was not paid. Mrs. Brookfield testified that the doctor came quite regularly for awhile and concluded that the visits were two or three times a week until Mr. Rosengren improved, when he would go to the doctor’s office. Another witness. Thelma Johnson, testified that she was employed in Dr. Kittelson’s office from September, 1934, to May, 1935; that she knew Charles Rosengren and that she saw him several times in Dr. Kittelson’s office where he came as a patient; that she did not keep the doctor’s books nor did she make any entries therein, as he kept his own books. The appellant, Dr. Kittelson, testified that he did not have a bookkeeper in his office and that he kept his own books; that he kept a day book; that all entries during the day were entered in the daybook; that he afterwards transferred the entries from the daybook into a loose-leaf ledger. He further testified as to the practice of keeping his books. He identified Exhibits 3 and 4 as daybooks that covered the period of time that he rendered professional services to Mr. Rosengren and that Exhibits 5 and 6 were the ledger sheets, taken from his loose-leaf ledger, covering the items concerning the services rendered to Rosengren and that they contained the entries of his daybooks, Exhibits 3 and 4. Upon completion of the testimony concerning the manner and method of keeping his books of account and concerning the exhibits containing the original entries made contemporaneous with the services rendered to the deceased, the books of entries, Exhibits 3 and 4, were offered in evidence for the purpose of showing that they compared with entries in Exhibits 5 and 6. Respondent objected to the reception of said exhibits as being incompetent, irrelevant, and immaterial, and for the further reason that they were incompetent under the provisions of subdivision 2 of section 2717, 1919 Revised Code, as relating to and being a part of transactions by the witness with a deceased person represented by respondent, and also upon the further ground that the entries purported to concern privileged communications between the doctor and his patient. This, in substance, covers the objection to the exhibits.
The court sustained the objection. Additional testimony was then offered concerning the reasonableness of the charges as based upon the records. Respondent objected to this testimony as being incompetent, irrelevant, and immaterial, and that there was not sufficient foundation as the exhibits had not been received in evidence. At this point it appears from the record that the objection was sustained and particularly for the reason that there was no proof in the record as to what services, if any, had been rendered. Appellant thereupon made a further attempt to place testimony in the record so as to secure the admission of the exhibits covering the services rendered to the deceased, and we quote the following from the record:
“John A. Kittelson, recalled, testified:
I have heard the testimony of Mr. and Mrs. Brookfield and also the testimony of the girl in my office.
Q. Now, Doctor, on those various occasions, what were the particular things that you did for Charles Rosengren, not giving any conversation, but just the facts of the things that you did?
Mr. Jones: That is objected to for the reason that it is incompetent, irrelevant, and immaterial, clearly relating to a transaction with the Deceased, Charles Rosengren, and is incompetent under the provisions of section 2717, subdivision two, and the witness is incompetent to testify thereto for the same reason.
The Court: Sustained.
Witness continues:
In my book I entered in the day book, Exhibits 3 and 4, payments of money as made by patients, and I do that in all cases, and I would make that daily in my books, and I did that in reference to Charles Rosengren. Those exhibits, my day book and journal, are all in my handwriting. I am acquainted with the charges generally in the community, for physicians and surgeons, and the charges that I have entered in the book from day to day for my patients are fair, ordinary and reasonable charges for the care and services rendered.
Mr. Danforth: Now we renew our offer of Exhibits 3, 4, 5 and 6 on the basis of the additional foundation.
Mr. Jones: To which Respondent makes the same objection previously made to said exhibits, and for the further reason that the same are self-serving and hearsay.
The Court: Sustained.
Witness continues:
There were no other payments or credits by my patients that are not entered in those books.”
Plaintiff rested and defendant moved for a directed verdict in his favor, which was granted.
Assignments of error relate to the admissibility of the books of account of the appellant, kept by him in the regular course of his business and in the regular way.
Respondent claimed that the books of account were inadmissible for the reason that they were part of and constituted a transaction with the decedent within the prohibition of section 2717 of the 1919, Revised Code. Subdivision 2, thereof, reads as follows:
Our statute uses the term, “any transaction whatever with.” From prior decisions we learn that we have placed some stress upon the interpretation expressed by the Iowa Supreme Court in McElhenney v. Hendricks, 82 Iowa 657, and Hutton v. Doxsee, 116 Iowa 13, on the word “transaction” and have rather indicated that, when book accounts are kept personally by the claimant, they should not be construed as “transactions.” This court, in the case of Hanson v....
To continue reading
Request your trial