Maryland Cas. Co. v. Sweek

• Decision Date: 22 May 1925
• Docket Number: Civil 2244
• Citation: 28 Ariz. 258,236 P. 720
• Parties: MARYLAND CASUALTY COMPANY, a Corporation, Appellant, v. W. O. SWEEK, Appellee
• Court: Arizona Supreme Court

236 P. 720

28 Ariz. 258

MARYLAND CASUALTY COMPANY, a Corporation, Appellant, v. W. O. SWEEK, Appellee

Civil No. 2244

Supreme Court of Arizona

May 22, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. C. Struckmeyer, Judge. Affirmed.

Mr. B E. Marks, for Appellant.

Messrs Baker & Whitney, for Appellee.

OPINION

LOCKWOOD, J.

W. O Sweek, hereinafter called plaintiff, brought suit against the Maryland Casualty Company, a corporation and Troy A. Hamm, hereinafter called defendants, for professional services which he claimed to have rendered defendant Hamm at the special instance and request of both defendants, and for which they promised to pay the reasonable value of such services, which plaintiff alleged to be Four Hundred and Seventy-four Dollars ($474.00). Defendant company filed a general demurrer and an answer, the material allegations of which read as follows:

"II. Answering paragraph II of said complaint, the defendant alleges that it did authorize the plaintiff to perform an operation upon the defendant Troy A. Hamm, and that it agreed to pay therefor the sum of one hundred and fifty ($150.00) dollars, and no more, and plaintiff agreed to perform said operation for said sum of one hundred and fifty ($150.00) dollars. And this defendant does now tender to the plaintiff and delivers to the clerk of this court for the benefit of the plaintiff, said sum of one hundred and fifty ($150.00) dollars.

"III. This defendant denies that it requested or authorized any other or future services to be rendered by the plaintiff for said defendant Troy A. Hamm, than in the foregoing paragraph is alleged.

"IV. This defendant denies that it promised and agreed to pay the plaintiff for any services and labors other than above admitted and in any greater sum or amount than in this amended answer is tendered.

"V. This defendant having no information upon which to base either an admission or denial, neither admits or denies that the services and labors alleged to have been performed by the plaintiff for the defendant Troy A. Hamm are reasonably worth the sum of four hundred and seventy-four ($474.00) dollars, but in this behalf this defendant alleges that in so far as it is concerned it agreed to pay to plaintiff for that certain operation performed by plaintiff upon said Troy A. Hamm the sum of one hundred and fifty ($150.00) dollars, and no more.

"VI. This defendant denies each and every allegation in plaintiff's complaint contained not herein specifically admitted."

The case was tried to a jury, which returned a verdict of Four Hundred Dollars ($400.00) in favor of plaintiff. The usual motion for a new trial being denied, defendant company appealed.

The first alleged error is that the court instructed the jury there was no denial the services were worth the sum set up in the complaint. Paragraph V of the answer states that defendant neither admits or denies the value of the alleged services, on the ground of lack of knowledge. It is contended, however, by defendants that the general denial is sufficient to cover that point. Whether or not in the face of the special allegation this be true, since the court instructed the jury that, notwithstanding there was no specific denial of the value, it was for the plaintiff to prove such value by the evidence, we do not think the jury could have been misled. The amount of the verdict itself shows clearly they realized the value of the services depended on the evidence, and not on any alleged admission in the answer. Had they construed the court's instruction to mean that the defendants admitted the value of the services, their...