Morrisett v. Wood

• Decision Date: 20 December 1900
• Parties: MORRISETT v. WOOD. [1]
• Court: Alabama Supreme Court

30 So. 630

128 Ala. 505

MORRISETT v. WOOD. ^[1]

Supreme Court of Alabama

December 20, 1900

Appeal from circuit court, Montgomery county; J. C. Richardson Judge.

Action by M. L. Wood against E. P. Morrisett, executor, to recover for medical services rendered his testator. Judgment for defendant, and plaintiff appeals. Reversed.

The complaint originally contained three counts, the second being stricken out by amendment. The first count claims for medical services rendered the defendant's testator during his last illness, and the third for work and labor done at the request of defendant's testator. Before the trial defendant demanded a list of the items composing the account. This list was furnished, and contained a statement of the dates and number of visits, and the charge for the same. Upon the trial the plaintiff proved by several witnesses that at various times defendant's testator had consulted with plaintiff, and had prescriptions filled, which had been prepared by the plaintiff; but the dates could not be identified by the witnesses. The witnesses were only able to state that defendant's testator called to see plaintiff many times during the year of 1895 between spring and November, but could not testify to the correctness of any items of the bill of particulars. Plaintiff then offered to prove the value of his services by asking a hypothetical question based upon the assumption that plaintiff had treated defendant's testator from March 30th to November, 1895 during which time defendant's testator called at plaintiff's office frequently for advice and prescriptions, as often as 12 times in each month. Defendant objected to this question, but the objection was overruled and defendant excepted. In its oral charge the court instructed the jury that they were not limited, under the third count, to proof of the items shown upon the bill of particulars, but could not find for more than the sum shown by the same. To this charge defendant excepted. There were other facts in the record, but a statement of them is unnecessary in view of the opinion.

E. P Morrissett and Chas. Wilkinson, for appellant.

Lomax, Orum & Well and Wiley & Wiley, for appellee.

DOWDELL J.

1. Section 3290 of the Code provides that at any time previous to the trial, upon notice to the attorney of the party, the defendant may have inspection of the bond or other instrument sued on, "or, when an account is the foundation of the suit, a list of the items composing it." The word "account" has no clearly-defined legal meaning. Ordinarily, it is a detailed statement of mutual demands (if they exist) in the nature of debit and credit between the parties, arising out of contract or some fiduciary relation, showing a balance by comparison between receipts and payments, but the balance is not itself an account; or an account may be a statement of debits by one person to another without credits, especially when there are no mutual demands. 1 Am. & Eng. Enc. Law (2d Ed.) 434. "The term 'account' includes goods sold and delivered or consigned to be sold, money had and received, and work done and materials furnished." 3 Enc. Pl. & Prac. 525.

2. The office of a bill of particulars is to amplify the pleading, and more minutely specify the claim or defense set up, and to prevent surprise on the trial by furnishing such information as a reasonable man would require respecting the matters against which he is called to defend. 3 Enc. Pl. & Prac. 519, and authorities cited, and cases referred to in note to section 3290 of Code. It is immaterial what the character of the action may be,--whether for goods and merchandise sold and delivered, for money had and received, for work and labor done or materials furnished, and the like. If an account is the foundation of the suit, the defendant is entitled to a list of the items composing it. Doss v. Peterson, 82 Ala. 253, 2 So. 644.

3. The nature of the demand of a physician for medical services rendered without a special contract therefor is simply an implied promise to pay what such services are reasonably worth, and the proper action for their recovery is assumpsit for such compensation as may be shown by evidence that the physician rendering the services ought to receive. This demand, in the absence of a special contract as to what shall be paid, is an open account. In an action for its recovery it is difficult to escape the conclusion that an account is not the foundation of the suit. Such a demand is subject to the bar of the statute of limitations of three years, as provided by statute against open or unliquidated accounts. Gayle's Adm'r v. Johnson, 72 Ala. 256, 47 Am. Rep. 405; Hood v. League, 102 Ala. 228, 14 So 572. This defense of the bar...