White v. Casey , 4 Stew. & P. 212 ( 1833 )

Taylor, J.

On the trial of this case, in the Circuit Court, the counsel of Casey and Heustis, the plaintiffs below, were permitted to read, in their argument, an account for medicine and medical service, against the defendant, White, amounting to sixty-nine dollars and twelve and a half cents, for which amount, the jury returned a verdict in favor of the plaintiffs.

Only one charge, in this account, was specially proved, amounting to about nine dollars; but evidence, that the plaintiffs attended as physicians, upr on the wife of the defendant, while ill, five miles from them, was introduced. A reference to the account, in the argument, was objected to, by the counsel for the defendant, but the Court permitted it to be so used, informing the jury, at the time, that it was not as evidence, that the account was referred to.

It is now insisted, that this is good cause for reversing the judgment; that the use which was made of the account, was calculated to prejudice the minds of the jury, and also, that the verdict, which was for the precise amount of the account, proves, it did have that effect. To sustain this position, the counsel for the plaintiff in error have cited the cases of Penfield vs. Carpender,^a and Irvine vs. Cook.^b These cases maintain the position, that it is error to permit incompetent testimony to be given to a jury, although they are afterwards instructed, that they, must reject it, in their retirement. But it is believed, there is not much analogy between the cases. When testimony is introduced, as competent, it makes an impression upon the mind, from its being received as such, which otherwise, it would not do. But it is presumable, that the argument upon the account, was. intended to show, that it was such'an one as would probably arise from the attendance upon the wife of the plaintiff, to which attendance, a witness had generally deposed, without being able to specify particulars. The jury had a right to find what, from the testimony, they considered a reasonable allowance for trouble and medicine; and we can see no objection to the counsel producing a paper in the form of an account, and contending, before the jury, that the charges contained in it were reasonable, and suffb ciently proved by the evidence.

The judgment is-affirmed,

Lipscomb, C. J., not sitting.

a 13 Johns. R. 350.

b 15 lb. 239