Proto v. Chenoweth, Civil 3180

• Decision Date: 06 June 1932
• Docket Number: Civil 3180
• Citation: 11 P.2d 950,40 Ariz. 312
• Parties: LOUIS PROTO, as Administrator of the Estate of ANTONIO PROTO, Deceased, Appellant, v. W. F. CHENOWETH, Appellee
• Court: Arizona Supreme Court

11 P.2d 950

40 Ariz. 312

LOUIS PROTO, as Administrator of the Estate of ANTONIO PROTO, Deceased, Appellant, v. W. F. CHENOWETH, Appellee

Civil No. 3180

Supreme Court of Arizona

June 6, 1932

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. John Wilson Ross, Judge. Judgment reversed and cause remanded, with directions to deny the preference sought.

Messrs Duffy & Robins, Messrs. Stockton & Perry and Mr. E. G Frazier, for Appellant.

Messrs Conner & Jones, for Appellee.

OPINION

ROSS, J.

Dr. W F. Chenoweth rendered to Antonio Proto, deceased, in his lifetime services as a physician. In due time he presented his claim to the administrator for allowance, who rejected it. Suit was thereafter brought, and the claim reduced to judgment. This proceeding in probate has for its purpose the determination whether such services were expenses of the decedent's last sickness and entitled to be preferred. The judgment recites what was claimed, what was rejected and what was allowed, as follows:

"That during the period June 1921 to and including the month of October 1923, excluding the month of August 1922, for which period plaintiff claims to have rendered professional services as physician and surgeon to the defendant's testator Antonio Proto at the rate of $500.00 per month, the plaintiff rendered the decedent no professional services as claimed by him during the months of August, September, October and November, 1921, and the months of April, May, September, October, November and December, 1922, and the months of January, March, April, May, June, August and September, 1923; that during the years 1921, 1922 and 1923 plaintiff did render the said deceased Antonio Proto professional services as physician and surgeon in the months and of the reasonable value as follows: June 1921 $450.00 July 1921 475.00 December 1921 420.00 January 1922 450.00 February 1922 500.00 March 1922 500.00 June 1922 500.00 July 1922 480.00 February 1923 500.00 July 1923 500.00 October 1923 500.00 making a total of $5,275.00 which the Court finds to be the reasonable value of the professional services as physician and surgeon rendered by the plaintiff to the deceased Antonio Proto during said period."

It will be noted that the claimant's demand extends from June 1, 1921, to and including October, 1923 (excepting only the month of August, 1922); that the court found that the services therein rendered were not continuous, but that from July 1, 1921, to December, 1921, he rendered no services, a lapse of four months; that the first, second, third, sixth and seventh months of 1922 he attended Proto, but did not attend him during the fourth, fifth, eighth, ninth, tenth, eleventh or twelfth months of that year; that he rendered Proto services in 1923 during the months of February, July and October only.

During all these times they resided in the same community, Nogales, Arizona. The latter part of November, 1923, Proto went from Nogales to Los Angeles, and on January 3, 1924, died in that city.

The right to preference depending, as it does, upon whether the claimant's services were rendered during the last sickness of Proto, the evidence at the hearing of the petition was directed to that point. The claimant in June, 1921, diagnosed Proto's ailment as carcinoma of the prostate, and thereafter treated him at intervals for that disease until his professional services ceased, in October, 1923.

The administrator offered evidence to the effect that Proto did not have carcinoma of the prostate, but that he did have sarcoma of the stomach, which was the cause of his death. The medical experts were not in agreement as to whether Proto died from carcinoma of the prostate and its metastasizations, or from sarcoma of the stomach as a primary disease.

Proto was eighty-one when claimant began to treat him and eighty-four when he died. During all this time he was afflicted with the infirmities of old age, such as myocarditis and arteriosclerosis. Whether Proto was up and around, looking after his business or bedridden, from June, 1921, the record is silent, except it does show that in November, 1923, after he went to Los Angeles, he was not confined to his bed, but was able to take daily automobile rides, and for two or three weeks made no complaint of pain. About December 20th he began to suffer intense pain in his stomach and to have violent vomiting spells. He went to bed, where he remained until he died. The immediate cause of his pain and vomiting and death was a sarcoma of the stomach. That he had periods sometimes extending over several months when he needed no medical attention and received none, at least from Dr. Chenoweth, is evidenced from itemized services as reflected in the quoted part of the judgment.

The trial court found as a fact that claimant's services were rendered to Proto "during his last illness," and directed that his demand be paid as a preferred claim. The administrator has appealed, and contends the court's finding is erroneous, in that there is no evidence to sustain such finding or the judgment based thereon.

The expenses of the last sickness were not preferred at common law. They are purely statutory. Our provisions in that regard are found in sections 4068 and 4069 of the Revised Code of 1928. By these sections "the expenses of the last sickness" are preferred to all others, except funeral expenses. Falling within the category of expenses of the last sickness...