Lewellyn v. Lewellyn , 78 Mo. App. 354 ( 1899 )

BOND, J.

The plaintiff is a physician. He exhibited the following account in the probate court against the estate of his deceased father, to wit:

“Charles T. Lewellyn, executor of the estate of Jacob-W. Lewellyn, dee’d, in account with George E. Lewellyn,

M. D., 1893.

“Dr.

May 11 Eor board, washing and nursing of deceased to May 18....................... $5.00

“ “ Eor medical attention and medicine to May 18........................... 7.50'

“ 18 Eor board, washing and nursing to May 25. 5.00'

“ “ Eor medical attention and medicine to May 25 .......................... 7.50

“ 25 Eor board, washing and nursing to June 1.. 5.00'

“ “ Eor medical attention and medicine to June 1........................ 7.50'

June 1 Eor board, washing and nursing to June 8... 5.00

“ “ For medical attention and medicine to June 8............................ 7.50

“ 8 Eor board, washing and nursing to June 15. 5.00

“ “ Eor medical attention and medicine to June 15.................. 7.50

“ 15 Eor board, washing and nursing to June 22.. 5.00

“ “ Eor medical attention and medicine to June 22........................... 7.50

“ 22 Eor board, washing and nursing to June 29.. 5.00

“ “ Eor medical attention and medicine to June

29........................... 7.50

$87.50

Amount over.......................... $87.50

June 29, 1893, board, washing and nursing to July 5. 2.50

“ “ Medical attention and medicine July 5. .,. 4.50

Nov. 16,1894 Eor surgical examination and operation for scrotal abscess............ 10.00

Amount claimed......................$104.50

The administrator denied the justice of the account and pleaded a set-off of $9.40. The probate court, after hearing the evidence, allowed $86.10 of plaintiff’s demand, and ordered it placed in the fifth class of demands against the estate, from which ruling the administrator appealed to the circuit court. Upon a trial there plaintiff gave evidence tending to prove the reasonableness of the charge contained in the above account, except the last item, as to which no evidence was offered. Defendant introduced in evidence the following letter admitted to have been written by plaintiff to his father:

“Nov. 14th, ’93.

“J. W. Lewellyn, Esq., Kahoka, Mo.

“Sir: — I herewith enclose an order from Judge Eoley to pay the $6.30 to me — also a rec’t for the $10.00 you claim I owe you — I paid Martin for you $5.25 — keep out of this order $4.75 and pay over to the Madam $1.55. Sign this receipt and send to me when we will be even in black and white though I am out $10.00 in money.

“G. E. Lewellyn.”

Thus to Martin........................$5.25

To order............................. é.30

Rec’d (you say)........................ $10.00

$11.55 $10.00

Balance due me.................... $1.55

Plaintiff introduced in evidence the following receipt:

“Winchester, Mo., Nov. 14, 1893.

“Rec’d. of G. E. Lewellyn, ten (10) dollars,, being in' full of all damages ag’st him to this date, of collections made by him for me. J. W. Lewellyn.”

The jury returned a verdict for defendant, from which this appeal is prosecuted.

The errors assigned relate solely to tbe refusal of two instructions requested by plaintiff, and to the giving of others for tbe defendant, and of tbe court’s motion. As to the first complaint it is sufficient to say tbat both of tbe instructions proffered by plaintiff directed a finding in bis favor leaving out of view tbe issue (presented by proof of bis relationship and other circumstances) as to whether or not be intended to charge for bis services. Ronsiek v. Boverschmidt, 63 Mo. App. 421; Kostuba v. Miller, 137 Mo. 161; Kinner v. Tschirpe, 45 Mo. App. 575; Finnell v. Gosch, 59 Mo. App. 209. This omitted issue, as well as tbe substance of plaintiff’s refused instructions, were embodied in an instruction given of tbe court’s motion. Tbe point under review is, therefore, ruled against appellant.

Neither did tbe court err in giving tbe instructions requested by defendant. Tbe only objection to these urged in appellant’s proof is tbat they were not authorized by tbe evidence. This is not well taken. There was no evidence tending to prove tbat plaintiff kept any book account of tbe items of charge contained in tbe demand sued on. It did appear tbat bis father was living with him when tbe services were rendered, and tbat a full settlement was bad between them, as shown by tbe foregoing letter of plaintiff. It also appears tbat plaintiff gave no evidence whatever tending to prove tbe last item of bis demand. Tbe instructions given for defendant were predicated upon this view of tbe evidence, and tbe law applicable thereto was correctly announced, hence tbe court committed no error in submitting to tbe jury tbe issues arising from tbe foregoing evidence. Binding no reversible error in tbe record, tbe judgment is affirmed.

All concur.