McDonald v. Harris

Citation31 So. 548,131 Ala. 359
PartiesMCDONALD v. HARRIS.
Decision Date17 December 1901
CourtSupreme Court of Alabama

Appeal from circuit court, Mobile county; Wm. S. Anderson, Judge.

Action by Oliver H. Harris against Daniel J. McDonald, as executor of the will of Thomas W. McDonald, deceased. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action was instituted by the appellee against appellant to recover for medical services rendered by the former to the latter's testator. There were three counts,--the first for work and labor done and due on the 20th of August, 1898 the second, on an account; and the third, an account stated. The defendant pleaded the general issue and two special pleas. The first was as follows: "The defendant says that this suit is for medical services alleged to have been rendered to Thomas W. McDonald in his lifetime, and that the said work was not done and the said medical services rendered in a skillful and competent manner." A demurrer to this plea was sustained. Upon the trial the defendant offered to prove by certain witnesses who were interested in the estate of the decedent transactions between the plaintiff and deceased, and statements made by the latter. This testimony was excluded at the instance of the plaintiff. The defendant also sought to prove by these witnesses declarations of the plaintiff relating to the character of the disease which he had treated, and for which he was seeking a recovery in this suit, and also directions given by the plaintiff in regard to the same. These declarations and directions were not made in the presence of the deceased, nor was he shown to have had any knowledge of the same. They were material as bearing upon the lack of ordinary skill on the part of the plaintiff in performing the services sued for. This testimony was also excluded at the instance of the plaintiff. The defendant proved by Mrs. McDonald, the widow of deceased, that the plaintiff told her (witness) that "he would guaranty a cure in three months; that he would guaranty to have Mr McDonald down to his office in three months, and in six months he would be as well as ever,--but that in six months he was in his grave." On motion of the plaintiff, that part of the above testimony, "that in six months he was in his grave," was excluded. The testimony for the plaintiff tended to show that he attended the deceased from April until August, 1898, making as many as 63 visits in May 64 in June, 82 in July, and 68 in August,--and that $3 was a reasonable and the customary charge for visits. There were many objections and exceptions to the testimony of plaintiff, but, in view of the opinion, a detailed statement of them is unnecessary. The defendant requested several written charges which were refused. Charge "c" is set out in the opinion. Charge "b" is as follows: "The court charges the jury that the first count of the complaint only claims of the defendant 'for work and labor done and medical services rendered for said Thomas W. McDonald on, to wit, the 20th day of August, 1898,' and no recovery can be had under this count for anything else." Charge "d" is as follows: "The court charges the jury that, in order to recover in this case, the plaintiff must reasonably satisfy the jury from the evidence that Thomas W. McDonald agreed with him, either expressly or impliedly, to pay him the reasonable value of the services, irrespective of whether he effected a cure or not; and if the jury cannot determine from the evidence, to their reasonable satisfaction, whether the understanding between the plaintiff and Thomas W. McDonald was that the said McDonald would pay for the services whether he was cured or not, or whether it was that the plaintiff would treat the said Thomas W. McDonald with the understanding that he should be paid for his services if he effected a cure, then the jury must find for the defendant." There was a verdict for the plaintiff for $670, and judgment accordingly, from which defendant appeals, and assigns for error the various rulings of the court upon the evidence, and the refusal to give the charges requested by him.

Gregory L. & H. T. Smith, for appellant.

L. H. & E. W. Faith, for appellee.

McCLELLAN C.J.

This is an action by Harris against the executor of the estate of Thomas W. McDonald, deceased, for the value of medical services rendered by plaintiff to and for the decedent. The executor, Daniel J. McDonald, is a son of said Thomas W. The defendant sought to prove certain transactions between Harris and Thomas W. McDonald and certain statements by the latter by the testimony of himself (said Daniel J.) and of Mrs. Thomas W. McDonald, the widow of the deceased. Of course, the estate of said Thomas W. was directly interested in the result of the suit. Of course, also, Daniel J. being the executor, and both he and Mrs. McDonald being heirs of the decedent and distributees of his estate, each of them was a "person having a pecuniary interest in the result of the suit," and that interest was opposed to the interest of the plaintiff, against whom they were called by the defendant to testify as to such transactions with or statements by the testator. It is palpable that, by the very letter of the statute, they were incompetent to testify to the transactions and statements in question. Code, § 1794. And it would be unnecessary to say more in justification of their exclusion by the trial court as witnesses as to these matters, but for an expression in the opinion of this court in the case of Austin v. Bean, 101 Ala. 133, 147, 16 So. 41, 45, where it is said by Head, J.: "The exception as to competency mentioned in the statute is for the protection of the estate of the deceased and those claiming under him, and does not contemplate that the adversary of the estate in a suit or proceeding may object to the competency of witnesses called by the representatives of the deceased in such suit or proceeding to prove transactions with or statements made by him." Where legislative purpose is clearly expressed, as in this statute, there can be no occasion for...

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24 cases
  • Knowles v. Blue
    • United States
    • Alabama Supreme Court
    • 18 Enero 1923
    ... ... 659, 54 So. 60, Ann. Cas. 1912D, 863; Hamrick v ... Shipp, 169 Ala. 191, 52 So. 932; Shelton v ... Hacelip, 167 Ala. 217, 51 So. 937; McDonald, Exec ... v. Harris, 131 Ala. 359, 31 So. 548 ... Several assignments of error are based on the refusal to ... grant plaintiff a ... ...
  • Schoenvogel v. Venator Group Retail, Inc.
    • United States
    • Alabama Supreme Court
    • 9 Julio 2004
    ...Tarver, 65 Ala. 98 (1880); Boykin v. Smith, 65 Ala. 294 (1880); and Hodges v. Denny, 86 Ala. 226, 5 So. 492 (1889). In McDonald v. Harris, 131 Ala. 359, 31 So. 548 (1901), a physician sought to recover from the executor of the estate of his deceased patient the value of medical services ren......
  • Niehuss v. Ford
    • United States
    • Alabama Supreme Court
    • 20 Enero 1949
    ... ... succeeded to the interest of the estate ... In the ... case of McDonald v. Harris, 131 Ala. 359, 31 So ... 548, the Court overruled Austin v. Bean, 101 Ala ... 133, 137, 16 So. 41, which had held that the statute ... ...
  • Talley v. Whitlock
    • United States
    • Alabama Supreme Court
    • 7 Diciembre 1916
    ... ... Crotwell, supra; Carpenter v. Walker, 170 Ala. 659, ... 54 So. 60, Ann.Cas.1912D, 863; Shelton v. Hacelip, ... 167 Ala. 217, 51 So. 937; McDonald v. Harris, 131 ... Ala. 359, 31 So. 548; 30 Cyc. 1575; 14 Am. & Eng.Ency.Law ... (1st Ed.) pp. 76, 78. But there is no rule of responsibility ... ...
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