Lowenstein v. Widdicomb
| Decision Date | 04 October 1932 |
| Docket Number | No. 22124.,22124. |
| Citation | 52 S.W.2d 1044 |
| Parties | LOWENSTEIN v. WIDDICOMB et ux. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; M. Hartman, Judge.
"Not to be officially published."
Action by Dr. H. M. Lowenstein against John C. Widdicomb and wife. From a judgment of the circuit court in favor of the plaintiff, on appeal from the justice court, the defendants appeal.
Affirmed.
Greensfelder & Grand and Forrest Hemker, all of St. Louis, for appellants.
Preston Quick, of St. Louis, for respondent.
This is an action on account, involving a doctor's bill for $267.80. Plaintiff prevailed in both the justice and circuit court. The defendants have appealed to this court.
The pleadings consist of the itemized account; the written answer pleads the statute of limitations, so the case is before us on plaintiff's itemized account, and a general denial and a plea of the statute of limitations by the defendants.
The cause was tried by the court without a jury. The first charge in plaintiff's demand is for services in performing a surgical operation on defendant Mrs. Widdicomb, and then for professional attendance and office calls, making a total of $256. Credit for $50 was given on December 2, 1919, leaving a balance of $206. The court allowed interest of $61.80 on the account from June 27, 1920, the date of the last alleged visit of Sue Widdicomb, the wife.
The record is short and in only one particular conflicting. Defendants are husband and wife. The wife called on the surgeon on September 28, 1919, from which date the account begins, for professional services, and was operated on at a local hospital by the plaintiff. The physician testified, and produced his records to show, that he had performed these services and had rendered to the defendants, from time to time, the bill for $250, and that the defendant Sue Widdicomb forwarded a check for $50 to plaintiff on December 2, 1919. Plaintiff further testified, and his records so show, that on March 11 and 24, 1920, and on June 27, 1920, Mrs. Widdicomb again came to the plaintiff's office for and did receive further medical treatment. This illness was entirely disconnected from the abdominal operation. For this, plaintiff made a charge of $2 a visit, or a total of $6. Plaintiff thereafter sent defendants a statement showing the credit and including the addition of the charge for the subsequent services.
Defendant Widdicomb testified that he visited his wife at the hospital, but denied any contractual relationship with the doctor, or that he knew his wife was to be operated upon until the operation had actually been performed.
The contention of the defendants is that the action is barred because the plaintiff (respondent) after having sent his bill for the original $250 and receiving payment by check from the wife of $50, that there was then an account stated for the sum of $200, and that the account as now appears with the items of March 11 and 24 and June 27, 1920, is a new account, and that the $200 account therefore is barred by the statute of limitations.
The second point is that the husband is not liable in any event because there is no direct evidence that he employed Dr. Lowenstein to perform the operation on his wife.
It is not difficult to determine where merit lies on this appeal. Deciding the second point first, it is enough to say, on the record before us, that "medical attention" is an absolute necessity for which the husband, as long as he and his wife are living together as husband and wife, is bound and under legal obligations to supply to his wife. County of Audrain v. Muir, 297 Mo. 499, 249 S. W. 383. It appears that these defendants were living together contentedly and under proper family relationship, and while the husband testified he did not know about the operation being contemplated, or that this particular plaintiff was to perform the operation, and while we on...
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McClellan v. City of St. Louis
... ... 581, 22 S.W. 479; Loveland v. Collins, (Mo.). 254 ... S.W. 22; Haycraft v. Haycraft (Mo. App.), 154 S.W ... 2d 617; Lowenstein v. Widdicomb (Mo. App.), 52 S.W ... 2d 1044; Miller v. Richardson (Mo. App.), 56 S.W. 2d ... 614; O'Shaughnessy v. Brownlee, 229 Mo.App. 342, ... ...
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McClellan v. City of St. Louis
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