151 A. 240 | Md. | 1930
This is an appeal from a judgment for the plaintiff in an action brought by Roscoe Dayhoff against Henry S. Owings, administrator of John W. Lacy, late of Howard County, deceased, to recover for services rendered and material furnished the defendant's decedent in the repair and operation of automobiles owned by said decedent, and for the hire of automobiles furnished to him by the plaintiff.
John W. Lacy was a physician, who settled in Lisbon, Howard County, some thirty years ago, and lived and practiced his profession there from that time until his death in *406 January, 1928. He was unmarried and made his home with Vernon Fowler, and occupied a bed room and maintained an office in his residence in that village during that entire period.
When he first came to Lisbon, Dr. Lacy drove a horse and buggy, but, when automobiles came into general use, he turned to them and at various times owned and operated a number of different cars. It may be assumed from the testimony that the usage to which these machines were subjected was rough, and that to keep them in running order more or less expert assistance was essential. The doctor apparently recognized the conventions of the old school of country physicians, and no road was too poor and no weather too bad to keep him from answering the calls of his patients; he appears to have been an indifferent mechanic, never acquired an adequate working knowledge of the care and repair of automobiles, and as a result his cars were often out of repair.
Roscoe Dayhoff, the plaintiff, is a garageman, and from 1919 to 1927 was engaged in that business in Lisbon. His garage was about two hundred and fifty yards from the Fowler home where Doctor Lacy resided, and his contention is that, beginning in 1921, Dr. Lacy from time to time called on him for assistance in operating his, Lacy's, automobile, to furnish an automobile and chauffeur to carry him from place to place in attending patients, or to supply him with gasoline, oil, and automobile parts and accessories. After Dr. Lacy's death in 1928, Dayhoff presented to his administrator a bill for these services and supplies, aggregating $2,659.35, which the administrator refused to pay, and Dayhoff thereupon brought this action. The declaration, filed April 20th, 1929, contains the six common counts, and accompanying it was an account or list of particulars in the following form: "John W. Lacy, Dr. To Roscoe Dayhoff, To services rendered $2,500." On July 6th, 1929, the defendant demanded further particulars of the plaintiff's claim, and, in response to that demand, the plaintiff filed a bill of particulars, which contained a detailed statement of charges for labor and supplies furnished Dr. Lacy in 1927 and January, 1928, aggregating $159.35, and also the following statement: *407
"For services rendered, hire and use of automobile
and gasoline furnished by Roscoe R.
Dayhoff to John W. Lacy, deceased, covering
period from September 1, 1921, to January,
1928 ....................................... $2,500.00"
To that bill the defendant excepted on the ground that the statement last quoted was too general, in that it failed to state "how much of the twenty-five hundred dollars ($2,500) therein charged is for `services rendered,' how much thereof is for `hire and use of automobile,' or how much thereof is for `gasoline furnished,' nor does said bill of particulars set forth with the particularity required by law the dates when the several matters and things therein charged were furnished." These exceptions were overruled, and the defendant then pleaded the general issue and limitations. The case was tried on those issues before the court and a jury, and at the conclusion of the trial a verdict returned for the plaintiff for $2,159.35. This appeal is from the judgment on that verdict.
The record contains sixteen exceptions, of which fourteen relate to rulings on questions of evidence, one to the court's rulings on the prayers, and one to its ruling in reference to a statement of counsel to the jury.
The first question submitted by the appeal is whether appellee's bill of particulars was sufficiently specific, and that relates only to the item of $2,500, for it is conceded that so much of the bill as related to the item of $159.35 was sufficient.
Code, art. 75, sec. 28, subsec. 107, provides that: "Either party may use the common law forms or the forms hereinbefore given, at his election; and either party may require a bill of particulars where the pleading is so general as not to give sufficient notice to the opposite party of the evidence to be offered in support of it." That part of the statute is declaratory in character, and announced a rule of procedure long recognized in this state (Black v. Woodrow,
Of the fourteen exceptions to the rulings of the trial court on the admissibility of evidence, only those which related to the opinions of certain experts as to the value of plaintiff's services were stressed in this court, and while the others were not expressly abandoned, they were trivial in character, and the rulings as to them are certainly free from injurious error.
The plaintiff made no attempt to supply any details or items of his $2,500 claim, but relied entirely upon the testimony of neighbors and patients of Dr. Lacy, and of neighbors, employees, and acquaintances of Dayhoff, who in substance testified that they had seen Dayhoff driving Dr. Lacy at all hours of the day and night, in all kinds of weather, and on good and bad roads; and that they knew that he was often called by Dr. Lacy either to drive his, Lacy's car, to start it, *411 or to repair it, or to drive him, Lacy, in Dayhoff's automobile. From the testimony it was impossible to say how much of Dayhoff's time was thus occupied, how much gasoline he furnished Dr. Lacy, how much of the time he drove his own, Dayhoff's car, and how much he drove Dr. Lacy's car, how far he drove either, or how much time he spent in repairing or in starting the Lacy car. Such evidence afforded no legal warrant for estimating the value of the plaintiff's claim on a time, quantity, or mileage basis, but the measure of his damages was fair compensation for one having plaintiff's skill and equipment, who held himself ready at all times to place them at Dr. Lacy's service, and which were accepted and used by Dr. Lacy in the maner and to the extent described in the evidence to which we have referred.
With the record in that state, the plaintiff called two witnesses, C. Edward Stem and John S. Barnes, to prove the value of his services. Neither of them appears to have had any direct knowledge of Dayhoff's services, but they were examined as experts. Stem lived at New Windsor, in Carroll County, and had for some ten years been employed to drive automobiles for wages. He knew nothing about the prices prevailing in Lisbon for the hire of automobiles, but testified that at New Windsor, sixteen miles away, the charge for a driver and car ranged from twenty cents to thirty cents per mile, that those prices prevailed all around there, and that he had driven hired cars in the neighborhood of Lisbon. Having stated that he had heard substantially all the testimony in the case, Stem was asked to express an opinion based on that testimony as to what would be "fair compensation for the services rendered, in light of what" he knew like services to be worth. Over objection he was allowed to answer and said: "In my judgment according to the evidence and condition of the roads he has had and with the time of the year he has had to do it in, I would say at the lowest figure $300 or $400 a year. I wouldn't mortgage myself to do it." He was then asked, "I want you to state it in a lump sum?" and replied again over objection, "$2,500." These rulings are the subject of the tenth and eleventh exceptions. *412
Barnes lived at Winfield, Carroll County, and had been engaged for some twelve years in driving automobiles for others; he had worked in and around Lisbon, and knew of one other person similarly engaged in Sykesville, whose work carried him into Howard County, and was familiar with prices paid "to men covering that territory." He too had heard all the testimony in the case (including the testimony of Stem). He was then asked: "From your knowledge of the pay to men taking people around in automobiles, chauffeurs and so on, and from all the testimony you have heard here today, what would you say would be a fair price for the services rendered by Roscoe Dayhoff to Doctor Lacy from September, 1921, to January, 1928?" An objection to that question was overruled and the witness answered, "$2,500." He then gave the following testimony on cross-examination: "Do you know how many trips he made? A. No, sir. Q. How many trips, you don't know how many trips he made in the day time? A. No, sir. Q. Know how many trips he made in the night time? A. No, sir; only from the evidence. Q. You know how many times they used Doctor Lacy's car? A. No, sir. Q. You know how many, you don't know how many times they used his own car? A. No, sir." And at the conclusion of that examination the defendant moved the court to strike out the witness' testimony, which motion the court overruled. These rulings are the subject of the twelfth and thirteenth exceptions.
The rulings involved in these four exceptions were undoubtedly erroneous. The testimony upon which the so-called expert opinions were based could not possibly furnish any rational or intelligible basis for an expert opinion as to the value of such services as the plaintiff rendered Dr. Lacy, nor was either witness qualified as an expert to say what Dayhoff's services were worth. Stem knew the rates per mile for the hire of an automobile and chauffeur; Barnes knew what chauffeurs were paid, but neither knew how services such as those rendered by Dayhoff were compensated. The only facts which as a result of their past experience were known to them, which may not have been known to the jury, *413
were the prevailing rates for the hire of automobiles or chauffeurs in the general neighborhood of Lisbon. But in applying that knowledge to determine what the services upon which the plaintiff's claim was based were worth, they had no greater or different qualifications than the jury, and to permit them under such circumstances to give their opinions as to the value of such services in the aggregate was to permit them to decide the very issue which the jury was sworn to try. The prevailing rates for automobile hire in the neighborhood, and the usual rate of compensation paid chauffeurs and automobile mechanics there, were facts to be considered by the jury in connection with the other evidence in the case in estimating the value of plaintiff's services, and it was for them alone to decide what weight should be given them. For the formulation of such an estimate on the evidence in the case required no greater skill or experience than that possessed by the average man engaged in the ordinary every day business of life. Hardy v. Chesapeake Bank,
The plaintiff's first prayer was in part predicated upon the hypothesis that within three years before the suit Dr. Lacy "declared that the plaintiff had done work for him and performed services," and that that statement amounted to an acknowledgment of a present subsisting indebtedness, and was sufficient to support an inference that Dr. Lacy then and there promised to pay the same. The defendant specially excepted *414 to the prayer on the ground that there was no evidence in the case legally sufficient to show any new promise or acknowledgment made to take effect within three years before the suit, and also in his first and third prayers asked that the jury be instructed that there was no evidence in the case legally sufficient to remove the bar of limitations raised by his fifth plea, and that in no event could the plaintiff recover for services or materials not rendered or supplied within three years before the suit. The special exception was overruled, the plaintiff's first prayer granted, and the defendant's first and third prayers refused. In these rulings there was error. The mere fact that the defendant's decedent had declared that the plaintiff had "worked for him and performed services" was certainly not an acknowledgment of a subsisting debt, but at most a mere narrative of a past occurrence. To say that at some past time a person was in one's employ, or that one owned a certain automobile, or that a contractor had built a house for him, carries no implication that the employee or the contractor or the automobile dealer has not been paid. The plaintiff's prayer was bad for that reason, and also because it excluded payment from the consideration of the jury, and should have been refused.
A somewhat different question was raised by the overruling of defendant's second special exception to plaintiff's prayer, and the refusal of his first and third prayers, which was, whether there was in the case any evidence legally sufficient to entitle the plaintiff to recover for services rendered, or materials furnished, the defendant's decedent, more than three years before the suit. It was not disputed that a part of the plaintiff's claim accrued more than three years before the suit, and unless within that period defendant or his decedent acknowledged the same as a present subsisting indebtedness, or expressly promised to pay therefor, or conditionally promised to pay the debt, and the condition had been performed or gratified, so much of the claim as accrued more than three years before the suit was barred by the statute. Taylor v. Perryville,
During the course of the case the defendant offered in evidence (1) a paper-writing purporting to be an admission of indebtedness signed by Dayhoff, (2) a check from Lacy to Dayhoff, on which was written the words "Settlement in full to date." In connection with those papers the defendant submitted two prayers, which in effect told the jury that, if they found that Dayhoff had executed the admission of indebtedness and had cashed the check, which was paid in due course, that he could not recover for any materials furnished or services rendered prior to the respective dates of those instruments.
The paper-writing referred to in defendant's sixth prayer is as follows:
"Dec. 3, 1926.
Interest July 25, $2.50.
I owe Dr. J.W. Lacy, eighty-one — 35 Dollars on settlement.
$80.35 2.50 ______ $82.85 Roscoe Dayhoff."
Marked on back:
"Paid July 24, '27."
That instrument falls directly within the ruling in Virdin v.Stockbridge,
Defendant's seventh prayer, which related to the check, was defective in that it failed to require a finding that the words "Settlement in full to date" were on the check when it was negotiated by Dayhoff. Aside from that objection, for *417
reasons stated above, it was unobjectionable. In Chapman v.Smoot,
In arguing the case to the jury, counsel for the appellee stated that counsel for the appellant could have called Mr. Dayhoff to the stand. The defendant thereupon moved the court to withdraw a juror and continue the case, and its refusal to grant that motion is the subject of the sixteenth exception (erroneously numbered seventeenth). Dayhoff was, under the statute (article 35, section 3), incompetent to testify as to conversations or transactions had with the deceased. The disqualification was statutory and no presumption arose from the failure of the appellant to waive it, and the remark was improper. But the court fully and carefully warned the jurors not to be affected by the statement, and we find no error in its refusal, under such circumstances, to continue the case.
From what has been said it follows that it will be necessary to reverse the judgment appealed from.
The defendant by his first special exception to the plaintiff's prayer asserted that there was in the case no evidence legally sufficient to entitle the plaintiff to recover on quantummeruit. But we find no substantial merit in that contention. There was abundant evidence of services rendered and materials furnished defendant's decedent within three years before the suit, and subsequent to the date of the receipts to which we have referred. The presumption is that, having received the benefit of such services and materials, the decedent undertook to pay what they were reasonably worth. Whether he did pay for them was for the jury to determine upon the evidence. The judgment will therefore be reversed with a new trial.
Judgment reversed, with costs to appellant, and new trialawarded. *418