39 App. D.C. 223 | D.C. Cir. | 1912
delivered the opinion of the Court:
The American Security & Trust Company, defendant below, as executor of the estate of John E. Herrell, deceased, appeals from a judgment for the sum of $27,476 recovered in an action in assumpsit by Joseph J. Kaveney, plaintiff, for the reasonable value of surgical and medical services rendered to the said Herrell.
The undisputed evidence shows that John E. Herrell died March 30, 1909, aged eighty years, and had been afflicted for some years with a serious enlargement of the prostate gland. He had neither wife nor child, and was a man of considerable means; president of a national bank and an officer of other corporations. He had a female cousin who kept house for him; also several servants. His home was in Washington. Plaintiff was a competent young physician and surgeon, aged thirty-one years, and had been practising his profession in Washington for a few years. During his attendance upon the invalid he married Miss Herrell, the housekeeper. During the last year or more of the invalid’s life, plaintiff occupied a room in his house so that he could be promptly called when needed. His office was in another building near by. Mr. Herrell refused to permit plaintiff to keep a telephone in the house for fear that he might be called out at night by other patients.
Plaintiff offered himself and his book of entries, from which the bill of particulars had been transcribed, as evidence in support of his demand. Both were excluded on objection of defendant. A male witness who had served as nurse of and had been in constant attendance upon the invalid from February 22 to March 30, 1909, testified to the performance of plaintiff’s services as charged during that time, day and night. A number of witnesses who had been intimate friends and asso
The first contention is that the court erred in refusing a. special prayer of defendant to the effect that plaintiff had produced no evidence sufficient to authorize a verdict that he had performed the particular services as specified in his bill of particulars from September 2, 1906, to February 22, 1909, and' that he was not entitled to recover for any services beyond $3,730, the same being for services rendered before September 2, 1906, and after February 22, 1909. In this view of the-pleading and evidence we cannot concur. The effect of a bill of particulars is to limit the plaintiff’s demand, and restrict his-proof to the subject-matters specified. He is not limited to-direct proof of each and every item on the particular date specified, but. may prove as many of the specified matters as may be-possible by the best evidence attainable. Plaintiff and his;
. The last contention is that the court erred in refusing to order ■•an inquiry into the proceedings in the jury room, and in refusing to set aside the verdict notwithstanding the prima facie showing that the verdict was irregularly and illegally returned, ;and was in fact a “quotient” verdict. After the return of the verdict, the defendant, in support of its motion for new trial, presented the affidavit of one Frederick A. Linger. This was in substance that Frederick A. Heine, a member of the., jury, stated to him that the jury were sometime in hopeless disagreement as to the amount of their verdict for the plaintiff, and had agreed that each juryman should name the amount of his verdict, and that the- sum of these amounts should be divided by twelve, and the quotient should be stated as the verdict; and that this was done. Plaintiff moved to strike out this affidavit, and pending that motion there was filed an affidavit by Heine and by the foreman, Cropley, and leave was prayed by plaintiff to file one joined in by three other jurors. Heine’s affidavit was to the effect that he had been accosted by Linger, who asked him: “Was it a fact that you all came to a verdict by each putting down the amount and dividing it by twelve ?” To this affiant replied, “That is a question I do not care to answer.” Linger replied: “Tour foreman, Cropley, told me so, and I want to find out whether it is so or not.” Affiant said: “If he told you so, he told you no lie.” The three jurymen’s affidavit was to the effect that the jurors were all for returning a verdict for the plaintiff, but differed as to the amount of the finding. A suggestion was made that each should write his amount upon a slip of paper. These were added together, and when the quotient
The judgment is affirmed, with costs. Affirmed.