Sayles v. Fitz Gerald

• Decision Date: 28 November 1899
• Citation: 44 A. 733,72 Conn. 391
• Court: Connecticut Supreme Court
• Parties: SAYLES v. FITZ GERALD.

44 A. 733

72 Conn. 391

SAYLES

v. FITZ GERALD.

Supreme Court of Errors of Connecticut.

Nov. 28, 1899.

Appeal from city court of New Haven; Edwin C. Dow, Judge.

Action by Joseph B. Sayles against David E. Fitz Gerald, executor of the will of John Reilly, deceased. From a judgment for plaintiff, defendant appeals. Reversed.

The bill of particulars contained the items and dates of the professional services rendered by the plaintiff to John Reilly, defendant's testator, between February 8 and May 16, 1897, amounting to $391. One item, under date of May 2d, was for an operation, "with Dr. Lamb assisting," for which the charge was $50. To paragraph 1 of the complaint, which alleged that between the 1st of February and the 1st of June, 1897, the plaintiff rendered professional services to one John Reilly, of the city of New Haven, of the value of $365, the defendant answered that he had not any knowledge or information thereof sufficient to form a belief. As a second defense the defendant pleaded payment, which was denied by the reply. The plaintiff had a verdict for $225.

During the trial, the plaintiff, on cross-examination, having admitted that he was sick on certain days for which in the bill of particulars he had charged for services, said that on those days Dr. Lamb had made his calls for him, and that he (the plaintiff) had charged them as his own calls. Upon the redirect examination the plaintiff was asked whether, during the time he was sick, any one attended to his work for him. Dr. Lamb, as a witness for the plaintiff, was also asked if he performed services for plaintiff for his patients during the period in question. To these inquiries counsel for defendant objected upon the ground that neither the complaint nor bill of particulars informed the defendant that he was being sued for services rendered by any one but Dr. Sayles, the plaintiff. The court overruled the objection, and admitted the inquiries, and permitted Dr. Lamb to testify that whenever Dr. Sayles was sick he attended to his whole practice, and attended to John Reilly. Dr. Lamb, having testified what was a reasonable price for dressing the wound and for performing operations upon Reilly, and that he had himself repeatedly dressed the wound, and had assisted in the operations, and that he had received his pay for his services so rendered for Dr. Sayles, was asked on cross-examination what he charged for such consultation and assistance, and again, "Was your charge a reasonable one?" These were claimed as proper questions on cross-examination as to the reasonableness of the plaintiff's charges. Upon plaintiff's objection they were excluded. The plaintiff having in his testimony referred to a book containing an account with said Reilly from February 1 to May 16, 1897, which he afterwards laid in evidence, the defendant called Mr. Doty, a stenographer, who testified that in the trial of another case, in which the plaintiff was a witness, he took his testimony, and further stated such testimony, which was, in effect, that upon the trial of the other case Dr. Sayles had testified that he had no books covering the period embraced by the bill of particulars in this case. Upon motion of plaintiff's counsel the court ordered the testimony of the witness Doty stricken out. The defendant, as a witness, testified, in substance, that before the plaintiff presented to him his claim in the present suit the plaintiff said to him that it would be to the advantage of both of them to have the claim allowed; that there was something in it for both of them. Upon motion of plaintiff's counsel, the court ordered this testimony stricken out upon the ground that under the pleadings the defendant was not permitted to show that the services in question were not, in fact, rendered. The defendant, having testified that the testator had stated to him that he owed no one excepting his landlady, Mrs. Butcher, and having stated on cross-examination that bills presented by several other persons bad been paid by him, offered by his own testimony to prove the amount of the estate, and that he had not paid such bills in full; but in view of the amount of the estate, and to save the expense of litigation, he had compromised with such claimants. Upon plaintiff's objection the court excluded the evidence. Thomas O'Connor, a witness for the defendant, testified that while he was in the plaintiff's employ as a coachman he was present when Reilly paid plaintiff $40 or $45, the plaintiff having testified that he had been paid no part of his said bill. O'Connor also testified to having been present at the operation for which the plaintiff had charged $50 in his bill of particulars. Having stated upon his direct examination, in answer to an inquiry, that the operation was performed in the cellar, he was asked, "What else was kept in the cellar?" and the further question, "Was the cellar clean?" These questions were claimed for the purpose of showing that the circumstances under which the operation in question was performed were such that the amount charged therefor was unreasonable. Upon plaintiff's objection the court...