Brown v. Hebb

Offutt, J., delivered the opinion of the Court. Dr. Arthur Hebb, a surgeon specializing in procrology or rectal surgery, operated on David Brown, at the Church Home and Infirmary in Baltimore on December 21st, 1928, for an internal anal fistula. Brown remained in the hospital for several days, and after his return to his home visited Dr. Hebb’s office, where his wound was dressed and treated daily, except for Saturdays and Sundays, for two months, and for a month after that he went every other day. Following that treatment, Brown received a bill from Dr. Hebb for $1,500, which he refused to pay on the ground that it was excessive.

On September 1st, 1931, he received from Robert Coughlin, Jr., the following letter: “I represent Dr. Arthur Hebb who operated on you some two years ago for a fistula. Dr. Hebb’s bill of'$1,500.00 is as yet unpaid and I have instructions to sue immediately if it is not taken care of. Will you please let me hear from you so I may know how to proceed.” To that letter Coughlin received the following reply from Messrs. Rosenbush & Bernstein, a firm of lawyers practicing in Baltimore City: ⁵³⁸ “In Re: Dr. Arthur Hebb vs. David Brown.

Dear Mr. Coughlin: Your letter of September 1st, addressed to Mr. David Brown in the above connection has been referred to us. On November 8th, 1928, Mr. Brown received a letter in the same connection and referred it to us, and we wrote as follows : ‘November 11, 1929. Attention of Mr. Wm. J. Murray, Mgr., Mercantile Collection Agency, Lexington Bldg., City.

Re: Dr. Hebb vs. David Brown. Gentlemen: We are in receipt of yours of. November 8th in the above connection. Mr. Brown authorizes us to make an offer of $300 in full settlement and compromise of the above claim.

Very truly yours, Rosenbush & Bernstein By- R:MC’ Mr. Brown is ready and willing to pay that amount now, and he informs me that his information is the offer is a very liberal one for the services rendered. Very truly yours, MR:SF Rosenbush & Bernstein.” On September 9th, 1931, Coughlin replied inviting further negotiations, and on September 11th, 1931, Rosenbush & Bernstein answered declining to add anything to what they had previously said. On October 5th, 1933, Hebb brought this action against Brown on the common counts in assumpsit to recover the $1,500 which he claimed for his services, and to the declaration Brown pleaded the general issue and limitations. The plaintiff joined issue on the general issue plea, and traversed the plea of limitations.

The usual practice is to reply a new promise (Evans’ Harris’ En ⁵³⁹ tries 155; Carey’s Forms 156, 37 C. J. 1237), but as no point was made of the form in which the defense was presented, and as there is some precedent for it (Bullen & Leake, Precedents of Pleadings 644,) it will be assumed that the issue as to whether the defendant did within three years before the suit promise to pay the plaintiff’s claim was properly presented. The case, which was tried before the court sitting as a jury, resulted in a verdict and judgment for the plaintiff, and from that judgment this appeal was taken. In the course of the trial the appellant reserved two exceptions to rulings on evidence, and two to the rulings of the court in respect to his prayers. The plaintiff was asked on cross-examination whether he classified an operation of “fistula in ano” as a major or minor operation, and he replied: “Well, I think next to cancer of the rectum, which is one of the biggest operations in the annals of surgery, that fistula in ano is one of the biggest operations we have to do.” A motion to strike out that answer as not responsive was overruled.

We find no error in that ruling, which is the subject of the first exception. The answer, while apparently not what counsel expected, was nevertheless directly responsive to his question. The second exception deals with the action of the court in overruling a motion to strike out the letters quoted above, which had been admitted subject to exception. That ruling was also free from error.

The letters were both material and relevant to the major issue upon which the case was tried, whether within three years before the suit defendant had admitted a present subsisting indebtedness to the plaintiff and, for reasons stated infra, were properly admitted. At the close of the plaintiff’s case defendant offered a prayer that there was no evidence in the case legally sufficient to remove the bar of the statute of limitations, and that therefore the verdict of the court sitting as a jury should be for the defendant. The prayer was refused and the third exception relates to that ruling. But since the defendant then offered evidence, he waived any ⁵⁴⁰ objection he may have had to it (cases collected in Carter’s Digest, sec. 382, Title Appeal), and that exception need not be further considered.

At the close of the whole case defendant reoffered that prayer and three additional prayers numbered two, three, and four, of which the second was granted and the others refused. Those rulings are the subject of the fourth exception. The plaintiff in the course of his testimony had said that he had, four or five days before, examined the hospital records and discovered that the diagnosis noted on the record by the hospital interne was incomplete in that it described the operation as for a “fistula in ano,” whereas to be complete it should have described it as for a “blind internal fistula in ano,” and that witness completed the diagnosis by adding the words “blind internal.” There was testimony tending to prove that an operation for an external fistula was simpler and less dangerous than one for a blind internal fistula, and inferentially less expensive, and' defendant’s third and fourth prayers were predicated upon the theory that, since the hospital records described merely a “fistula in ano,” the court was authorized to find that the operation was for a “fistula in ano,” and that, if it did so find, no evidence of the value of such a service having been offered, it was required to return a verdict for the defendant. The objections to that predicate are obvious.

First, there is no necessary conflict between the terms “fistula in ano” and “blind internal fistula in ano,” other than that the one term is generic and the other specific, the one complete and the other incomplete, the general description includes the specific, just as the term “water” would include fresh water, salt water, rain water, lime water, and the^ like. Second, entirely apart from the opinion evidence as to a reasonable charge for an operation for a blind internal fistula in ano, there was evidence of the time, labor, care, and skill given by the plaintiff in connection with defendant’s ^ailment, and of the plaintiff’s standing and skill as a surgeon, and from that ⁵⁴¹ evidence the court as a jury was authorized, notwithstanding the absence of any opinion evidence of the value of the services, to appraise them itself. Sedgwick on Damages, sec. 664a (9th Ed.); 28 R. C. L. 670. The substantial question presented by the appeal was raised by the refusal of the defendant’s first prayer, in which he asked the court to rule that there was in the case no evidence legally sufficient to remove the bar of limitations, and that question turns upon the construction and effect to be given the letter from Rosenbush & Bernstein to Coughlin dated September 3rd, 1931.

The cause of action accrued early in 1929, the action was commenced on October 5th, 1933, and the action was barred unless within three years before the suit the defendant had expressly or impliedly promised to pay the debt. Apart from that letter there was no evidence of any kind of a new promise. The letter was written in an effort to compromise the claim, was not signed by the defendant but by his attorneys, and contained no express promise to pay the amount demanded by the plaintiff. Whether it was evidence of a new promise depended therefore upon these factors, (1) whether the statement that “Mr. Brown is ready and willing to pay that amount,” meaning the $300 referred to in the letter from Rosenbush & Bernstein dated November 11th, 1929, “now, and he informs me that his information is the offer is a very liberal one for the services rendered,” is an acknowledgment of a present subsisting indebtedness; (2) whether that statement was so far integrated with the attempt to compromise the claim as to make it inadmissible as evidence of a new promise; and (3) whether, assuming that it was otherwise admissible, Rosenbush & Bernstein were authorized to bind the defendant by such an admission.

The langauge quoted is undoubtedly an admission that Hebb had rendered service; that he had not been paid for the service ; that Brown was willing to pay him $300 in full settlement for such service but no more; that Hebb claimed $1,500 for the service, but that Brown definitely refused to pay that amount. ⁵⁴² A concise and comprehensive statement of the rule defining the elements and effect of an admission or an acknowledgment necessary to constitute a new promise sufficient to take a case out of the statute of limitations is to be found in Wilmer v. Gaither, 68 Md. 345 , 12 A. 8, 10, 253 , quoted with approval in Taylor v. Commrs., 132 Md. 420 , 104 A. 475 , where it is said: “In this state, as in England, there must be shown to exist one of three things to take a case out of the operation of the statute of limitations: First, an admission or acknowledgment by the debtor of a subsisting debt, from which a promise to pay may be implied; secondly, an unconditional promise to pay the debt; or, thirdly, a conditional promise to pay the debt, and evidence which shows that the condition has- been performed or gratified.” In Knight v. Knight, 155 Md. 246 , 141 A. 706, 708 , the court, quoting from Oliver v. Gray, 1 H. & G. 204 , said that such an admission “must not be accompanied by any qualifications or declarations which, if true, would exempt the party from a moral obligation to discharge it.” And, in Higdon v. Stewart, 17 Md. 111 , 112: “As we have said, the declaration or acknowledgment must be taken as a whole, and it cannot be disproved as to any part; offered by the plaintiff as his proof, he will not be allowed to adopt the admission and reject the qualification. * * * But it is said his denial was not unqualified; that he admitted fifty dollars to be due, which opened the whole account between them. It is true, that where a party admits his indebtedness generally, a promise to pay a particular sum .need not be proved. But here the admission is limited to a precise amount; is not the party offering the admission bound by the declaration as made? He cannot disprove it by showing he owed more, nor can he segregate one part from the other.

He said he did not think he owed any thing; again, that he did not think he owed him more than fifty dollars; which we take to mean this, that he thought he owed him nothing, but if he owed any thing, it was not more than the sum stated. If we say that, under this loose conversation, the plaintiff may recover a ⁵⁴³ thousand or more dollars, if the plaintiff can prove that such as originally due, would it not be turning the man’s words into something that he did not say, by construing his admission, qualified as it was, into a promise to pay a much larger amount, which his other remarks clearly, as we think, show he deemed an unjust demand?. It is of no consequence that he did not speak confidently of his owing nothing, but merely expressed his opinion. The plaintiff offers these opinions, and cannot discard them from consideration any more than the other parts of the conversation.” 37 C. J. 1142.

Many of the cases in which varying phraseology has been held sufficient to constitute a new promise are collected in an elaborate opinion written by Judge Pattison in Knight v. Knight, supra. Cases in which the phraseology was held insufficient to remove the bar are Higdon v. Stewart, supra, where the proof was that Higdon, the defendant, had said “that he and Stewart never had had any settlement, and that he did not think he owed Mr. Stewart any thing, that he had receipts for all the money he had paid Mr. Stewart, except for one hundred dollars, but he did not know how much he had paid him, he thought he had paid him six or seven hundred dollars, but the books or receipts would show; sometime afterwards, Mr. Stone called his attention to the matter again, when he said he did not think he owed Mr.