Young Bros. v. Succession of Von Schoeler

• Decision Date: 03 April 1922
• Docket Number: 24903
• Citation: 151 La. 73,91 So. 551
• Court: Louisiana Supreme Court
• Parties: YOUNG BROS. v. Succession of VON SCHOELER

91 So. 551

151 La. 73

YOUNG BROS. v. Succession of VON SCHOELER

No. 24903

Supreme Court of Louisiana

April 3, 1922

Appeal from Twenty-Sixth Judicial District Court, Parish of St Tammany; Prentiss B. Carter, Judge.

Action by Young Bros. against the succession of Janie C. Von Schoeler. From a judgment for plaintiffs, defendant appeals.

Affirmed.

J. D Grace, of New Orleans, and Ellis & Cappel, of Covington, for appellant.

Lewis L. Morgan and L. C. Moise, both of Covington, for appellees.

OPINION

THOMPSON, J.

The plaintiffs own the Fenwick Sanitarium, located at Covington this state. Mrs. Janie C. Von Schoeler was a patient in the institution from October 10, 1919, until her death March 3, 1920. Shortly after her death, Dr. F. F. Young, father of plaintiffs and the founder of the sanitarium, applied to the court for the appointment as administrator of the succession of the deceased. He alleged that he was a creditor of the estate for the amount claimed in this suit. His appointment was opposed by the surviving husband of Mrs. Von Schoeler. The opposition was sustained, and Victor Von Schoeler was appointed. Dr. Young then filed suit against the succession on the claim. The suit was subsequently voluntarily discontinued. The presentsuit was filed by his two sons. The petition was directed against the succession of Mrs. Janie C. Von Schoeler, and the prayer was for judgment against that succession, but through error the Christian name of the deceased was given instead of that of the administrator. An amended petition was filed before issue was joined, correcting the error.

We have mentioned these details because of the insistent complaint of defendant's counsel that the error was one not curable by amendment, and for the further contention that Dr. Young, and not the plaintiffs, was the real owner of the claim sued on. The error in the original petition was merely clerical and was the proper subject of amendment especially before issue was joined. The nature and substance of the demand was not altered, nor did the amendment substitute a new party defendant. The evidence clearly establishes the ownership of the sanitarium in the plaintiffs, and the debt sued on is due, if due at all, to the plaintiffs. The judicial allegations in the petition of Dr. F. F. Young are not binding on the plaintiffs, and certainly furnish no proof of ownership in Dr. Young as against the plaintiffs.

The demand is for $ 3,400 and is made up of the following items For room and board, care, and attention of Mrs. Von Schoeler in the sanitarium from October 10, 1919, to March 3, 1920, $ 700; for constant medical attention, nursing, and medicines for various diseases named, from May 20, 1919, to March 3, 1920, $ 2,500; and for amount paid consulting physicians, $ 200. There is no serious objection to the first and third items of the account. The two items, under the evidence, appear to be reasonable and proper charges. The theory of the opposition to the item of $ 2,500 is that the charge is exorbitant and disproportionate to the services rendered to, or that were required by, Mrs. Von Schoeler. In other words, that she was not a sufferer from all or any of the numerous maladies for which the plaintiffs claim to have treated her. The testimony of defendant, in the main, is directed to proving that fact. The testimony fails of its purpose. Mrs. Sewell, a sister of the deceased, testified to the physical condition of her sister only from general appearance. She said there was no outward indication of a cancer of the breast, and, so far as she knew, her sister had no organic disease. The last time she saw her sister was in October, just before she entered the sanitarium. Mrs. Phillips, another sister, had not seen Mrs. Von Schoeler for three years prior to her death. Mr. Phillips, a nephew, saw his aunt at the sanitarium in December before her death. Said she was in bed, but did not appear to be very sick. Hannah Magee, a servant of Mrs. Von Schoeler, waited on her a few months before she entered the sanitarium, bathed and rubbed her, and saw no indication of cancer or other sore on her body. Mrs. Poole, who resides near the sanitarium, had known deceased for 28 years, and testified that she was always of a nervous temperament and drank a great deal. Ernest Levy, a negro porter at the sanitarium testified that Mrs. Von Schoeler was up nearly every day around the sanitarium, but at times was confined to her bed. Dr. Maylie was assistant house physician at the sanitarium in 1915, and testified that the customary charges of the sanitarium were $ 150 to $ 250 per month of four weeks, for narcotics, and that such charges included everything the patient needed, rooms, board, medicines, medical attention, and nurse. He was only slightly acquainted with Mrs. Von Schoeler and knew nothing of her condition, except that she was under the...