43 Colo. 50 | Colo. | 1908
delivered the opinion of the court:
After this appeal was perfected, plaintiff died, and his administratrix has been substituted as appellee. It is appellee’s contention, first, that defendant’s action for damages set up in the cross-complaint abates with the death of plaintiff; second, that
We shall not decide the first point, because we are clearly of opinion that, under the doctrine of Jackson v. Burnham, 20 Colo. 532, a case of malpractice was not made out by the evidence. Indeed, defendant does not in his brief press his claim in that behalf, apparently because his own expert evidence precludes a judgment in his favor.
The other question raised on this appeal is as to the propriety of the direction of a verdict in plaintiff’s favor for the value of his professional services. It must be admitted that there is no direct, competent evidence as to their value except the testimony of plaintiff himself and two other doctors called by him. All of it tends to show that the bill rendered, and for which judgment was entered, was the customary and reasonable fee for such services as the plaintiff said he performed. In the absence of any evidence of value to the contrary, or of evidence inconsistent with plaintiff’s testimony as to the extent or character of the services, it might be that the jury ought to find in plaintiff’s favor for the amount claimed; yet it seems clear that the court committed prejudicial error in limiting the scope of the cross-examination of plaintiff by defendant’s counsel, for had the questions on cross-examination been allowed, and the plaintiff required to answer,' the jury might have found, on substantial evidence, that the services were of less value than, or not so extensive as, plaintiff says they were.
Plaintiff testified in his own behalf merely to the effect that he was a licensed physician and had, at defendant’s request, attended the latter’s children, and that the bill for which he sued was the customary and reasonable fee, no part of which had been paid. In his complaint he alleged that the
See, also, Thompson on Trials, § 406; Idaho Mer. Co. v. Kalanquin, 66 Pac. 933 (Idaho case).
Defendant assigns as error the overruling of his motion for a continuance, because of an excusable failure to have at the trial a deposition of an important witness. Unquestionably the facts to which he says the witness would testify if present, or if her deposition could be obtained, are material under the issues, and defendant showed due diligence in an effort to produce this evidence. But applications for a continuance are largely within the legal discretion of the trial court, and except in case of abuse, its decision upon them will not be disturbed. There was no showing by defendant that, if the case were continued, the witness could be produced, or her deposition secured. Therefore, we cannot say that
For this error of the court in limiting defendant’s right to cross-examination, the judgment is reversed and the cause remanded.
Reversed and remanded.
Chief Justice Steele and Mr. Justice Gabbert concur]