Morgenroth v. Spencer

• Decision Date: 05 April 1905
• Citation: 124 Wis. 564,102 N.W. 1086
• Parties: MORGENROTH v. SPENCER.
• Court: Wisconsin Supreme Court

124 Wis. 564

102 N.W. 1086

MORGENROTH

v.SPENCER.

Supreme Court of Wisconsin.

April 5, 1905.

Appeal from Circuit Court, Green Lake County; Geo. W. Burnell, Judge.

Action by H. W. Morgenroth against S. B. Spencer. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action was commenced in justice court to recover for professional services performed by plaintiff, a physician, for the wife of defendant. The complaint alleges the statutory qualifications as physician, and that, at defendant's special instance and request, plaintiff rendered the services sued for in treatment of defendant's wife; that such services were necessaries which defendant was bound to furnish and provide for his wife, the reasonable worth of which defendant promised to pay; and that such services were worth $34.75. The answer is a general denial. The action was tried by the court and a jury, and, at the conclusion of plaintiff's evidence, defendant moved for a nonsuit, which was denied; and, after the evidence was all in, both parties moved for a directed verdict. The court refused to direct a verdict for defendant, but directed a verdict for plaintiff. Judgment was rendered for plaintiff upon the verdict so directed, from which defendant appeals, and assigns the following errors: (1) The court erred in refusing to grant a nonsuit; (2) the court erred in refusing to direct a verdict for defendant; (3) the court erred in directing a verdict for plaintiff; (4) the court erred in admitting in evidence the deposition and testimony of the wife of defendant, Matilda Spencer.Perry Niskern, for appellant.

Geo. B. Heaney (John J. Wood, Jr., of counsel), for respondent.

KERWIN, J. (after stating the facts).

The question involved under the first, second, and third assignments of error is whether there was sufficient evidence to go to the jury upon the question of defendant's liability for plaintiff's bill for services. It appears from the evidence that defendant and his wife were married in 1888, and lived together until 1891, when she left him, and remained away for seven or eight weeks on a farm occupied by her sister, in which she had an interest; that she returned and continued to live with defendant until 1900, when she again, at the request of her sister, Mrs. Dalby, and without objection on the part of defendant, went to the home of her sister; that, when she left, it was understood between defendant and his wife that she was to remain away two or three weeks, at the expiration of which time defendant went to Mrs. Dalby's to take his wife home, and she refused to go, saying she would never live with him again; that several times thereafter defendant requested her to return, but she refused and continued to live with her sister from January, 1900, until the trial of this action. During this time she was more or less out of health, and was occasionally visited by defendant, with whom she apparently was on friendly relations--in June, 1900, going to a summer resort with him for a period of 10 days, and at other times being visited by defendant, and going out on short visits with him. In January, 1900, defendant employed one Dr. Dodson, physician, to treat his wife while at her sister's. In April, 1900, he wrote to her sister with whom she was staying, seeking to make some arrangement for her board; and during the same month he received a letter from his wife, saying she was paying her own expenses. In March, 1903, the wife employed plaintiff as a physician to treat her. This employment was by the wife. Plaintiff never...