97 Wash. 149 | Wash. | 1917
In this action respondent sued upon an account to recover $3,500 for medical services and medicines furnished to Mr. and Mrs. Benjamin F. Woodman, citizens of Washington, while sojourning in the state of Massachusetts. A verdict was rendered for $£,000. Motions for non-suit at the conclusion of plaintiff’s case and for a new trial after verdict were made and denied.
The services alleged to have been performed covered a period extending from about October 1, 1911, to April 7, 191£. Mrs. Woodman died about January £5, 191£, while being treated in Massachusetts, and shortly after, April 7, 191£, Mr. Woodman returned to Washington, and thereafter was adjudged to be insane and the appellant was appointed his guardian. This suit was instituted against the guardian of the estate of the insane person. Respondent alleged, in his original complaint, that the services were to be rendered and medicines furnished to Mr. and Mrs. Woodman under a sort of special employment by Mr. Woodman to render such services and attend to Woodman and wife at any and all times to the exclusion of all other business, and that such services were so rendered and medicines so furnished, and that, by reason thereof, the services were lumped in the sum of $3,500, which was intended to cover all the physician’s time, medicines furnished, and consultations. It was also alleged that respondent left a practice at Somerville, Massachusetts, and that the greater portion of the services rendered for Mr. and Mrs. Woodman were in the city of Boston, requiring much time in going to and from Somerville to attend the patients in Boston.
Shortly after the institution of this action, appellant deposited with the clerk of the court the sum of $761.55, and
It is contended by respondent that the requiring of a bill of particulars is a matter of discretion with the court, and that respondent was excused from furnishing the bill of particulars of these items under the allegation in connection therewith that the exact amount of medicine given at each visit, or its value, could not be positively ascertained, and that the fair value of such medicine given each visit could not be stated.
It is true that, in many cases, the requirement of a bill of particulars is a matter of discretion with the court; but under our practice, under Rem. Code, § 284, when an account is
Again, in Moore v. Scharnikow, 48 Wash. 564, 94 Pac. 117, it was said:
“In a mercantile account, or in any account which is made up of several and distinct items, it is proper for the court to require that the value of each article be separately stated. So also a physician, since he bases the value of his services on the number of visits made the patient or the number of prescriptions given him, may be required to set out in his bill of items the charge made for each visit, or each prescription.”
There was no evidence furnished by respondent that he was, at the times mentioned in his amended complaint, a regularly qualified and practicing physician in the state of Massachusetts. For this reason, appellant claims that a nonsuit should have been granted, since it was necessary for respondent to prove his qualifications to practice in order to recover. Respondent testified by deposition that he had practiced in the state of Massachusetts something more than forty years. It is contended that, by the laws of Washington, respondent could not recover without proving that he was admitted and licensed to practice. While this may be true, it must be considered that appellant, by depositing a sum of money which he admitted to be due to respondent, admitted that respondent was entitled to recover something as a physician, having sued as a physician, and that appellant is_ not now in a position to urge that failure of proof.
In this connection it is contended by appellant that the deposit is not the same as a tender, in order to avoid the force and effect of the law relating to a tender as stated in Young v. Borzone, 26 Wash. 4, 66 Pac. 135, 421. There it was held that a plea of tender with payment into court conclusively admits plaintiff’s cause of action as to the amount tendered. In what respect a deposit in court for the benefit of the plaintiff is different from a tender, appellant does not make entirely clear. The law provides that a tender, made before action, and the bringing of the amount of the tender
It is next contended that, under the provisions of Rem. Code, § 1211, excluding evidence of a party in interest as to any transaction had by him or any statement made to him when suing a deceased or insane person, all the evidence of appellant as to transactions between him and B. F. Woodman, the insane person, should have been excluded. The testimony of respondent was taken in Massachusetts by deposition. The testimony as to the nature of the employment of respondent was taken by depositions of other witnesses, and the evidence thereof given by respondent in his deposition was excluded at the trial. Respondent testified to his account book, and read therefrom the items of the account kept by him in the book. Appellant himself was there present, acting as attorney for himself and his ward. He conducted the cross-examination of the witness at the taking of the deposition.
“Question: Doctor, you kept a book, didn’t you, of the visits and services? Answer: Yes. Q. And in testifying in your direct examination in reference to these services and what you did, you read from that book? A. Yes. Q. You have that book with you? A. Yes, right here. Q. And in that book you kept other accounts besides this? A. Yes. Q. And in direct examination you also read from certain memorandums as to the afflictions and diseases with which Mr. and Mrs. Woodman were suffering? A. Yes. Q. The memorandums were made at the time you observed the sickness? A. Yes. Not all at once, as there were conditions as they went along. Q. As the conditions developed you made additions? A. Yes.”
During the direct examination of respondent at the talcing of the deposition, in answer to a question, he said: “These are the original entries from my book and I have a right to read these.” He then proceeded to read the items contained in his book.
It is thus shown that the book was properly qualified and would have been admitted in evidence under the rule announced by this court in Ah How v. Furth, 13 Wash. 550, 43 Pac. 639. Appellant, being there present at the taking of the deposition, made no objection to the reading of the contents of the book into evidence in the deposition, and did not call for the annexation of the book to the deposition as an original exhibit. At the trial, he objected to the reading of any of the answers given by respondent, and a great deal of the testimony given by respondent not constituting strictly the reading of entries found in the book was excluded, the court saying that the statute seemed to draw the line at anything that a deceased or insane person might dispute if living or sane. It is contended, however, that the court after-wards frequently permitted answers of the respondent to
In the Ah How case, supra, it was held that the testimony of respondent, that he worked at the house of the intestate and as to the character of the work performed by him, was not testimony in relation to a transaction had by him with, or any statement made to him by, such intestate. “Such testimony related solely to acts of the witness alone and was entirely competent;” citing authorities. For the same reason, we consider that the testimony by deposition of this respondent, which was admitted, came within the same rule. These book entries, together with other corroborating testimony independent of the respondent’s testimony, covered every material feature of respondent’s case sufficiently to entitle him to recover something in his action.
Nor do we think that the objection of appellant to the testimony of respondent as to his book entries, by reading them into the deposition instead of producing the book, can now avail him. He stood by and permitted entries in the
We find no other error in the record sufficient to justify a reversal, except the error as to the bill of particulars. That was a substantial and prejudicial error and would justify a reversal. We believe, however, that justice will be done to both parties if respondent be allowed to remit from the verdict the sum of $500, covered by the paragraph in his complaint concerning the furnishing of medicines, and allow the recovery to stand for the remainder of $1,500, with interest and the costs below:
It is therefore ordered that, if respondent shall remit the sum of $500 from the recovery below, within thirty days, the judgment shall stand for the sum of $1,500, with interest from June 26, 1916, and the costs in the court below. If respondent shall fail and refuse so to remit within the time specified, a new trial shall be granted. Appellant will recover costs of appeal.
Ellis, C. J., Mount, Parker, and Fullerton, JJ., concur.