Morrisette v. Wood

• Decision Date: 13 June 1899
• Citation: 123 Ala. 384,26 So. 307
• Parties: MORRISETTE v. WOOD.
• Court: Alabama Supreme Court

26 So. 307

123 Ala. 384

MORRISETTE v. WOOD.

Supreme Court of Alabama

June 13, 1899

Appeal from circuit court, Montgomery county.

Action of assumpsit by M. L. Wood against E. P. Morrisettes executor of B. L. Barksdale, to recover for medical services rendered defendant's testator. There was a judgment for plaintiff, and defendant appeals. Reversed.

After the plaintiff had filed his complaint, the defendant made a tender of $150 to the plaintiff, and upon his refusal to accept the same in satisfaction of his demand defendant deposited said amount with the clerk of the circuit court and filed a plea of payment. At the trial of the cause the defendant made the statutory affidavit denying the truth of the entries in plaintiff's books relating to the account sued on. The plaintiff then proceeded to prove his account by other evidence. Prior to the trial the defendant had made a demand of the attorney for plaintiff of the list of the items composing his account, which was furnished to defendant's attorney, and which is set out in the record. On the trial the plaintiff was sworn as a witness in his own behalf, and testified that he knew B. L. Barksdale, and that he had tertiary syphilis for several years, and died of syphilis of the brain and hypostatic pneumonia. The defendant objected to this testimony on the ground that it was illegal, in that it was a transaction with the defendant's testator. The court overruled this objection, allowed the evidence to go to the jury, and the defendant duly excepted. Dr. Goldthwaite, a witness for the plaintiff, testified that he was called with plaintiff to see defendant's testator in his last illness, and he stated that the cause of the death was the same diseases as stated by the plaintiff in his testimony. There were other witnesses introduced by the plaintiff, whose testimony tended to show that the defendant's testator suffered, just before his death, from the diseases as stated by the plaintiff in his testimony. The plaintiff introduced as a witness Mr. Carr, who testified that he was often at the home of Barksdale during his lifetime; that Dr. Wood was the regular family physician of Barksdale, and that in the spring of 1895 he saw Dr. Wood, the plaintiff, attending Barksdale at his house; that this was on several occasions in 1894 and in the spring of 1895, and that he also saw him at Barksdale house in the summer and winter of 1895, and during his last illness. The plaintiff introduced as a witness Mr. Stowers who testified that the estate of the defendant's testator was worth $30,000. The defendant objected to the introduction of this evidence as to the value of his testator's estate, upon the ground that the same was illegal and irrelevant. The court overruled the objection, and the defendant duly excepted. The plaintiff then introduced Dr Lucius Gaston and eight other physicians of the city of Montgomery, all of high character and professional standing to each of whom the following question was propounded "Assuming that B. L. Barksdale died in November, 1895, of syphilis of the brain and hypostatic pneumonia; that Dr. Wood treated the deceased, as his regular physician, for tertiary syphilis, during a period extending from March to November, during which time deceased frequently called at Wood's office for advice and prescriptions,-say as often as twelve times a month during said period,-and that sometimes Wood paid visits to Barksdale at his residence, attending him professionally during said period, and also attended him professionally for a period of eight days during his last illness, both by day and by night, and prescribing for him for syphilis of the brain and hypostatic pneumonia; and assuming that he had at the time of his death an estate estimated to be worth thirty thousand dollars,-upon this state of facts please state what, in your opinion, would be a reasonable compensation to Dr. Wood for the professional services thus rendered to the deceased, and chargeable against his estate?" The defendant separately objected to this question as propounded to each of said witnesses, upon the grounds that there was no legal evidence in the case upon which to base said question, and that the question was illegal. The court overruled this objection, and the defendant duly excepted. In answer to said questions the witnesses variously estimated the reasonable compensation for professional services so rendered at from $1,500 to $2,500 The defendant separately moved the court to exclude the testimony of each of these witnesses on the same ground as interposed to the question. The court overruled each of these motions, and the defendant duly excepted. The defendant introduced in evidence the depositions of Drs. W. C. Jackson and W. G. Bibb. Dr. Jackson testified that he attended the defendant's testator during his last illness as consulting physician with Dr. Wood, and that a fair and reasonable compensation for the services rendered by himself and Dr. Wood would be $130. Dr....