215 S.W.2d 356 | Tex. App. | 1948
Appellee, Dr. Giles W. Day, of Tarrant County, Texas, sued appellant, William W. Helms, of Tarrant County, Texas, for the balance of $250 due and owing to him by appellant on a note in the sum of $400.
Appellant (defendant) alleged, in his second amended answer, failure of consideration, substantially as follows: That his wife was ill and he took her to appellee for treatment; that after examination, appellee informed appellant that he could and would restore appellant's wife to a normal mental condition, upon condition that appellant pay appellee the sum of $550 in advance; that upon such representation appellant accepted said terms by paying appellee $150 in cash and by executing the note in question for the balance, payable $75 monthly; that appellee began treating appellant's wife until he completed eighteen or twenty treatments; that appellant's wife gradually became worse under the treatment until she was forced to discontinue them, and as a result, there was and is a failure of consideration for the note in question.
Paragraph 4 of said answer reads as follows: "4. That in demanding and accepting said note, plaintiff agreed and undertook to cure defendant's wife of the ailment from which she was suffering, and having failed in such undertaking, he is not entitled to recover on said note."
Appellant sued appellee by way of cross action for recovery of the $150 cash payment and the $150 which he had paid on said note because of said failure of consideration.
While it is noted that appellant's petition alleging failure of consideration is not verified, as directed under section (j), Rule 93, Texas Rules of Civil Procedure, however, the same is susceptible to being waived and was so waived by appellee. Exchange National Bank v. Parsons, Tex. Civ. App.
The case was tried to a jury to which the court instructed a verdict in favor of appellee. *358
Appellant predicates this appeal upon three points, complaining principally of the court in disallowing the jury to pass upon his defensive issues pertaining to failure of consideration which was supported by his pleadings and evidence.
Appellee contends the trial court was correct in directing the verdict because appellant's defenses were not supported by competent testimony, in that such testimony reflects malpractice which can only be testified to by expert testimony. While it is a true statement of the law that malpractice must be established by competent evidence, to wit, expert testimony, yet we find that it is also a true statement of the law that a lay witness may testify to the general condition of persons with whom witness is acquainted and associated frequently. We do not construe appellant's allegations to be those of malpractice.
It is also the law that the maker of a note may set up as a defense, by way of cross action, in payee's action, failure of consideration and breach of warranty for which note was given. Stevens-Etter Co. et al. v. Grain Juice Co., Tex. Civ. App.
In the case of J. I. Case Threshing Machine Co. v. Howth,
It is also the law that a doctor may contract with a patient by an express agreement to either cure or not charge and if so he is bound by the general rules pertaining to the laws of contract. See 33 Tex.Jur. 364, sec 81; Lakeside Sanitarium v. Dickens, Tex. Civ. App.
In 41 Am.Jur., p. 262, sec. 149, it is said: "Actions by physicians for compensation for services rendered are not different in their general aspects from actions of like nature generally, and are controlled by the same general principles, as set out in other articles."
In the absence of a special contract to either cure or not charge for services, it is a rule of law that a doctor never insures results but simply engages that he possesses a reasonable degree of skill, such as ordinarily possessed by a profession generally, and to exercise that skill with reasonable care and diligence, and again to exercise his best judgment, and while so performing he is not responsible for his mistakes of judgment. Of course such general rule may be varied by special circumstances or agreements. Graham v. Gautier,
Appellee's measure of recovery for partial performance may, by proper pleading and proof, be based on quantum meruit, that is, recovery of a reasonable value of his services rendered and materials furnished in lieu of contract, less any payments made, as well as any damage which appellant's wife may have suffered, as in the case of a contractor. See 7 Tex.Jur. 620, sec. 61; also see case of Rogers v. Mexico City Banking Co.,
Finding that the trial court erred in instructing the verdict, we reverse and remand the case for a new trial. *359