Mays v. Hogan

4 Tex. 13 | Tex. | 1849

Lipscomb, J.

This was an action brought by the appellee in this court, against tho appellant, on an open account for medicines and professional services as a physician rendered to the family of appellaut.

The defendant, sets up in his answer a great deal of irrelevant matter, not at all pertinent to his defense, whether true or false, and it ought to have been stricken from the proceedings in the court below; and it no doubt would have been done liad tho attention of the presiding jndge been particularly called to it. The only matters material on which there ought to have been any discussion, or on which an issue could have been formed,'were professional skill, services rendered, and the usual charges for such services. Several p.oiuts have been presented by the appellant’s brief, founded on charges prayed to be given and refused and charges given. We consider that only one of them requires any notice. The counsel for the defendant requested tire conrt to charge tho jury “ that the plaintiff is not entitled to recover anything of the defendant for his “ services and prescriptions as a physician unless lie’proves to tlieir siii ¡.-¡faction “that he is a regular physician.” The charge was given as aslred, excepting in this: tile court substituted “skillful and efficient” in the. place of the word “regular.” We cannot perceive any error in the substitution. In truth, the. words employed by the judge are more expressive and appropriate than the word “regular,” if by that term we are to understand one who had gone through the forms of a medical school; because that he may have been, in that sense, a regular physician, without skill or efficiency, and that tho .latter qualifications were certainly most essential to the interests of iiis patients. Wo are satisfied that tho conrt below committed no error in the several charges given and refused. It was a case depending entirely on the evidence; and the jury, on the evidence, found a verdict for the plaintiff.

We can perceive no-error in the refusal to grant a new trial. There was no contradiction in the evidence on the material matters to be considered by the jury. These were skill in ilia physician, services rendered, and charges at the usual rates.

Judgment affirmed.