Bower v. Smith , 8 Ga. 74 ( 1850 )

By the Court.

Lumpkin, J.

delivering the opinion.

As all the questions made during the progress of the trial, came under review on the motion for a new trial, we shall direct our attention exclusively to that.

[1.] It is complained that the verdict of the Jury was .contrary to the charge of the Court. If this be so, and the law of the case was properly submitted, a new trial should have been awarded. What was the charge % That, in order to authorize a verdict for the plaintiff, upon his medical account, he must prove that he was in the habit of keeping correct books, by persons who had dealings with him. We believe the rule of law to be correctly stated; and upon examining the record, we are satisfied that the proof did not come up to it. Brooks and Beall, the only witnesses offered for that purpose, testified that Dr. Smith attended their families, and they considered the bills rendered by him reasonable; but they both state, they had not examined their accounts, and could not say that he had performed the several items of service for which he had charged them. This evidence is no compliance with the rule. The accounts rendered against the witnesses may have been reasonable in the aggregate; but that is not the point. Were they just 1 Were they correct in their items ? This is the aliunde testimony which gives faith and credit to books.

[2.] It is insisted that a new trial should have been granted, because the Court erred in permitting the books to be offered in evidence — it appearing, from their inspection, that an interlineation had been made in them, in different ,ink from the items charged at the same date ; and further, that the books contained evidence upon their face, that several items charged against the defendant were unjust; namely, the item of attendance per day— the books showing that on the same days, the plaintiff charged mileage to other persons, residing at a distance, in some instances, of twelve miles from the defendant.

All the Courts concur, that before the books of the party can be admitted in evidence, that they are'to be submitted to the inspection of the Court; and, if they do not appear to be a register of the daily business of the party, and to have been honestly and fairly kept, they are to be excluded.

Now, the difficulty is, in determining what fraudulent appearances, upon the face of the books, will authorize a Court to withhold them from the Jury. When it is recollected that a large portion of our blacksmiths, mechanics, and laboring men, who keep books, have never been taught this art, and many of them are entirely uneducated, it would not do to prescribe a rule, so stringent as to operate, in many cases, to the exclusion of the only evidence upon which they could secure the value of their labor. And it would seem to me, that the irregularities in the books should be exceedingly gross and palpable, to justify the Court in arresting the evidence, from that tribunal whose peculiar province it is7 to judge of the credibility of testimony.

I concede that the books might, upon their face, appear to have been so unfairly and dishonestly kept, as to authorize the Court to lay its hands upon them, and refuse their admission, at least until evidence was offered, explanatory of these discrediting circumstances. Suppose, for instance, the account on the books was entered, settled or satisfied in full. Surely, the books, fer se, would be no evidence of indebtedness, but of tbe contrary; and yet, tbe plaintiff might be abundantly prepared to prove that this entry was made there by mistake. Should he not be permitted to <3o so, and thus restore the books to competency ; and so transfer the issue from one of law, to the Court, to one of fact, for the Jury 1 This, it occurs to me, would be the better practise, especially as it would be both the privilege and the duty of the Court, to call the attention of the Jury to these false and fraudulent appearances, in its summing up in conclusion. We are inclined to hold, therefore, that the Court did not err in suffering these books to go to the Jury.

[3.] We are clear that the verdict was not authorized by the evidence, so far as it charged the defendant with the accounts of Austin and Arthur. The books were insufficient, of themselves, to make him liable for the debts of third persons ; and there was no other proof tendered.

[4.] We are equally clear, in holding that it was error in the Court, to charge the Jury that it was not necessary for the plaintiff to show a license, provided he was a practising physician between the years 1834 and-1839 — there being no evidence, so far as the record shows, to support sueh a charge.

Upon these grounds, therefore, a new trial is awarded.

We find it unnecessary to express any opinion as to the alleged misconduct of the Jury, in dispersing before they rendered their verdict. The record does not show but that the Jury separated by the consent of the plaintiff in error, which, if given, as we are bound to presume it was, would have cured the irregularity, even if it be such a one as would otherwise have vitiated the verdict.

Judgment reversed.