Morrissett v. Wood , 123 Ala. 384 ( 1898 )

McCLELLAN, C. J.

The statement of the plaintiff as a-witness that lie knew the defendant’s testator, and that he had a certain disease for several years before his death, and that he died of that disease complicated with another which witness named, involved no transaction Avith the deceased, and is not Avithin the first — or any other — exception to the. competency of parties as witnesses under section 1794 of the Code.

•The trial court erred in admitting testimony as to the value of the patient’s estate, against the objection of the defendant. The inquiry was as to the value of the professional services rendered by the plaintiff to the defendant’s testator and, as the case was presented below, the amount or value of the latter’s estate could shed no legitimate light upon this issue nor aid in its elucidation: The cure or amelioration of disease is as important to a poor man as it is to a rich one, and, prima facie at least, the services rendered the one are of the same value as the same services rendered to the other. If there was a recognized usage obtaining in the premises here involved to. graduate professional charges with reference to the financial condition of the person for whom such services are rendered, which had been so long established and so universally acted upon as to have ripened into a custom of such character that it might be considered that these services Avere rendered and accepted in contemplation of it, there is no hint of it in the evidence.

The hypothetical question propounded to the expert witnesses, Gaston and others, was objectionable only because one of its postulates was the value of the testator’s estate. It is not necessary for such questions to postulate every fact of Avhich there is evidence before the jury, but they are unobjectionable if they hypothesize a state of facts Avhich the jury is authorized to find.

The evidence of the Avitness Carr as to services rendered by the plaintiff to Barksdale, the defendant’s testator, prior to November, 1895, AAras competent as it stood in the case at the time when the evidence Avas closed by both parties whereon the court adjourned till the next day. It Avas, Ave think, in the discretion of the court to decline to reopen the case on its reconvention for the purpose of alloAving the defendant to offer other evidence the effect of Avhich would or might have been to show the impertinency of this testimony of Oarr.

No account of tlie plaintiff'was offered in evidence by him, or avus at all in evidence. The charge requested by the defendant Avas therefoie abstract in a sense. Moreover, this charge is sufficiently argumentative in character to justify the court's action in refusing to give it.

For the error pointed, out, the judgment must be reversed. The cause is remanded.