Trenouth v. Mulroney

• Decision Date: 10 February 1951
• Docket Number: No. 9021,9021
• Citation: 227 P.2d 590,124 Mont. 499
• Parties: TRENOUTH v. MULRONEY.
• Court: Montana Supreme Court

Page 590

227 P.2d 590

124 Mont. 499

TRENOUTH v. MULRONEY.

No. 9021.

Supreme Court of Montana.

Feb. 10, 1951.

Smith, Boone & Rimel, Missoula, for appellant.

Fred W. Schilling, Missoula, for respondent.

ADAIR, Chief Justice.

Dr. S. M. Trenouth, a physician, brought this action at law against the defendant Thomas E. Mulroney as administrator of the estate of Mrs. Lyde Schall Buckhouse, deceased, to recover a money judgment of $1,563 on a disallowed creditor's claim for professional services claimed to have been rendered under a written power of attorney executed by decedent six years prior to her demise.

Plaintiff is associated with a number of other doctors in the practice of medicine at Missoula, Montana, in what is known as the Western Montana Clinic.

On September 30, 1942, the decedent signed and executed a writing termed 'Power of Attorney' prepared by an attorney at law at the request of decedent which reads:

'Power of Attorney

'Know All Men By These Presents:

'That I, Lyde Schall Buckhouse, of Arlee, Lake County, Montana, do by this instrument make, constitute and appoint Stanley M. Trenouth, M. D., of Missoula, Montana, my true and lawful attorney-infact and my agent, for the purposes hereinafter stated:

'Whereas, said Stanley M. Trenouth, M. D., is an eminent physician and surgeon in whom I have the utmost confidence and who has heretofore been, and is now, my physician, and it is my earnest with and desire that when and if I am in need of medical or surgical care and attention, that such surgical care and attention will be rendered to me by said Stanley M. Trenouth, M. D.; and in view of the fact that when I am so in need of such medical or surgical care and attention, I may not be able to declare my wish and intention so to be attended and treated or operated upon by said Stanley M. Trenouth, M. D.,

'Now Therefore, after earnest and thoughtful consideration and in view of the uncertainties of the future, I do hereby declare it to be my wish, will and desire that any and all medical and surgical care or attention that I may ever hereafter be in need of, be rendered to me by said Stanley M. Trenouth, M. D., and I do hereby give him the complete and absolute authority and right to render and to administer to me whatever medical or surgical care in his judgment I am in need of at any time in the future; giving and granting to him the full and absolute right, power and authority to use his own discretion and judgment as to any medical or surgical care which he believes should be administered to me; and I expressly declare it to be my will, wish and intent that no other person shall have any right whatsoever to interfere with his decision, discretion or right so to administer to me such medical or surgical care or attention; giving and granting unto said Stanley M. Trenouth, M. D., such full right, power and authority;

'And in consideration of the foregoing trust and confidence which I have in said Stanley M. Trenouth, M. D., and in the security and peace of mind which I have by reason of the execution of this instrument and of any future services of any kind which may be rendered to me by him, I do hereby acknowledge my indebtedness to him in the sum of Two Thousand Dollars ($2000.00), and I direct that in case of my death, my executor or administrator or heirs shall pay to him said sum of $2000.00, if said amount has not theretofore been paid to him, or the unpaid amount thereof in case part only has been paid to him.

'In Witness Whereof, I have hereunto set my hand and seal at Missoula, Montana, this 30th day of September, 1942.

'Lyde Schall Buckhouse (Seal)'

[Acknowledged before a Notary.] Emphasis supplied.

Immediately upon the execution thereof the decedent delivered the above document to plaintiff who gave it to his office girl at the Clinic to put in the safe where it remained until after the death of decedent. Upon the appointment of defendant as administrator the plaintiff attached the 'Power of Attorney' to a creditor's claim for $1,563 and presented same to the administrator for allowance.

The claim, with the title, caption and claimant's affidavit omitted, reads:

'Creditor's Claim

'The undersigned creditor of Lyde Schall Buckhouse, deceased, presents his claim against the Estate of said deceased, with the necessary vouchers, for approval as follows, to-wit:

Estate of Lyde Schall Buckhouse, Deceased to Stanley M. Trenouth, M. D. Dr. 2,000.00

For professional services rendered to deceased under Power of Attorney and Agreement attached hereto no part of which has been paid, except the sum of $437.00 437.00

Balance 1,563.00'

The $437 credit is for money paid by decedent to the Western Montana Clinic for medical services rendered her subsequent to the execution and delivery of the 'Power of Attorney.' The claim was rejected by the administrator whereupon plaintiff brought this action.

In his complaint plaintiff pleads: That decedent executed the 'Power of Attorney' and thereafter delivered same to him; that he accepted the instrument and thereafter performed all acts required of him thereunder; that during decedent's lifetime she paid to the plaintiff and to doctors selected by him to perform various services for her, the sum of $437, but that no part of the balance representing the difference between $2,000 and $437 has been paid and that such balance in the sum of $1,563 is now due, owing and unpaid.

Defendant's answer admits his appointment as administrator; admits the execution of the so-called 'Power of Attorney;' admits that the instrument was delivered to plaintiff and that he rendered her certain medical and surgical care, but denies that plaintiff performed all the acts required to be performed by him under the instrument; admits that during her lifetime decedent paid $437 for professional services rendered by plaintiff and other doctors selected by him; avers that upon the death of decedent the 'Power of Attorney' became null, void and ceased to be of any force or effect and denies that there is due or owing to plaintiff the sum of $1,563 or any other amount. As a separate defense defendant denies that plaintiff performed all the acts which he was required to perform under the instrument and alleges that at the time the instrument was delivered to plaintiff there was an understanding between plaintiff and decedent that during the remainder of decedent's lifetime plaintiff would, without cost or expense to her, render to her all necessary and reasonable services as a physician but that in violation of said instrument plaintiff charged decedent $437 for professional services and required her to pay same.

Plaintiff filed a reply wherein he denied that upon the death of decedent the power of attorney became null and void; denied that he accepted the power of attorney with the understanding that during the remainder of her lifetime he would without cost to decedent render her all necessary and reasonable services as a physician; admits that plaintiff rendered needed professional services to decedent and admits that plaintiff and other physicians selected by him charged her the sum of $437 and that she paid such sum.

A jury having been waived, trial of the issues was had before the court. Two witnesses testified on behalf of plaintiff. No evidence was introduced by defendant. The court made written findings of fact and conclusions of law in favor of defendant and in accordance therewith judgment of dismissal was entered from which judgment plaintiff has appealed.

There is no evidence that at the time decedent signed the 'Power of Attorney' or that at the time she delivered it to plaintiff she was then indebted to plaintiff in any sum or amount whatever. However, the evidence affirmatively shows that subsequent to the execution and delivery by her of the power of attorney she was regularly billed by the clinic for medical care and attention rendered her by the members of the clinic; that such bills and charges totaled $437 and that decedent paid for such services and charges in full.

On his direct examination at the trial, plaintiff testified:

'Q. At the time that instrument was delivered to you had you ever seen it prior to that time? A. No.

'Q. Had you ever discussed with Mrs. Buckhouse the subject matter of the agreement, prior to that time? A. No.

'Q. The instrument then came to you as something of a surprise? A. It was very much of a surprise.

'Q. After the instrument was given to you, what did you do with it? A. I gave it to our office girl to put in the safe.

'Q. Then after Mrs. Buckhouse's death, it was given to me, was it not? A. Yes.

'Q. It was in your possession from the time it was given to you by Mrs. Buckhouse until her death? A. Yes.

'Q. At the time that Mrs. Buckhouse delivered this instrument to you, did you read it? A. Yes.

'Q. Was anything said to Mrs. Buckhouse as to whether you would accept it or not?

'Mr. Schilling: We object to that. Our witness is gone. The instrument speaks for itself. It would be calling for hearsay.

'Mr. Smith: This question was as to what he said about accepting it.

'The Court: All right, Overruled.

'Q. What did you say as to whether you would accept the instrument? A. I agreed to accept it.

'Q. Knowing the contents of the instrument, was anything said by you as to whether you would do the things that the instrument requested you to do? A. I told her I would do them to the best of my ability.

'Q. After the instrument was executed and delivered to you, did you then continue to act as Mrs. Buckhouse's physician? A. Yes, I did.

'Q. Did you perform, youself, all of the services that were rendered to her? All the medical services rendered? A. No, I didn't.

'Q. When she needed medical services, you recommended the doctors to do particular things for her? A. I did.

'Q. Those doctors were doctors in the Western Montana Clinic, is that correct? A. Yes.

'Q. You are a member of this firm of doctors? A. I am.

'Q. ...