Weaver v. Morgan's Executors

PETERS, J.

— This is an action at law for the recovery of a promissory note, and a physician’s account for his medical services. The physician died after the services were rendered, and the suit is brought by his executors. Weaver was defendant in the court below. On the trial in the court below, the plaintiffs recovered judgment for $455 damages, together with costs. From this judgment Weaver appeals to this court. There were two exceptions taken by the defendant on the trial in the court below; upon these exceptions the errors are assigned. They are set out in the words of the bill of exceptions below. On the trial, the original entries in the book of the testator, who was a physician, were offered as evidence for the plaintiffs, to prove that the services were rendered. To this there was no objection. The plaintiff offered other evidence, tending to prove the value of the services charged in the book of entries above said. To this there was no objection. The defendant in the court below was then sworn as a witness for himself; and the bill of exceptions states that “ he was asked if the entries in the book offered in evidence were a correct statement? To which question he replied that they were not; and the court excluded the book from the jury at the request of the defendant. His counsel then offered to hand the witness the book offered in evidence, and to ask him which of said entries were correct, and which were not; stating, at the same time, that the witness did not propose to dispute or deny the whole account, but that he admitted a part of said account to be correct. The plaintiff’s counsel objecting, the court refused to allow him to give any such statement, but was required simply to deny the entries in the book as a whole, and without qualification; to which the defendant excepted.”

The second exception is thus stated in the record: “ The court thereupon gave a general charge to the jury, to which neither party excepted ; but the plaintiffs requested the court to further charge the jury that they might look to the whole evidence, outside the said book of original returns ” (entries ?) “ of the said Morgan (the deceased), to show that the services were rendered by him to the defendant for which Tie was suing; which charge the court gave, and the defendant excepted.”

The bill of exceptions does not show that all the evidence delivered to the jury is set out in the bill of exceptions.

1. The first exception, above recited, seems to invoke an exposition of the section of the Code making the “ entry in his books by a physician evidence of service, unless denied on oath,” when the suit is for his medical services. This section of the statute is in these words : “ The original entries in the books of a physician are evidence for him, in all actions brought for the recovery of his medical services, that the service was rendered, unless the defendant, in open court, deny upon oath the truth of such entries; but he is required to prove the value of such services. Where the denial is by a legal representative of the party, it is sufficient for him to swear that he believes it to be untrue.” Rev. Code, § 2700. It seems that the denial of the truth of the entries renders the book incompetent. This was the construction of the court below. Therefore, upon the proper denial of the entries by the defendant, the book was properly excluded. After this, the defendant proposed to admit such of the entries as he esteemed correct, and at 'the same time to point out those which were incorrect, or which he was not willing to admit. To this the plaintiffs objected, and the court refused to permit it. This action of the court gave rise to the first exception. Against the deceased physician, the defendant could only become a competent witness to deny the truth of the entries. Beyond this he was not competent to testify as to any transaction with or statement by the testator, unless called to testify thereto by the plaintiffs. Rev. Code, § 2704. Here the transaction was one with the testator, and the witness was not called by the plaintiffs, but they rejected him. This they had the right to do, and I do not see how the defendant could be injured by it. Besides, the book had been rejected, and it was no longer before the court for explanation or qualification. If, however, it was the purpose of the defendant to admit some of the items or entries of the book, in order to reject and disprove the others, then he was going beyond the purpose of this statute. He can do but a single thing under this statute, that is, “ in open court deny upon oath the truth ” of the eiitries in the book. If the defendant seeks to go beyond this, his competency must be governed by another rule, and this rule excludes him. Rev. Code, § 2704. The court did not err in this ruling. . ,

The second exception was based on the instruction to the jury. The court charged the jury that they might look outside the book, to the whole evidence, to show the services were rendered by the deceased as a physician, to recover which the suit is brought. There was no error in this. The bill of exception does not profess to set out all the evidence. It must be presumed, then, in support of the ruling of the court, that there was other evidence of the services outside the book. If there was, then there was no error in the instruction.

The judgment of the court below is affirmed.