McNamee v. Burke

South Dakota Supreme Court

McNamee v. Burke

136 N.W. 1127, 29 S.D. 493, 1912 S.D. LEXIS 175

DecidedJune 25, 1912

StatusPublished

This text of 136 N.W. 1127 (McNamee v. Burke) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNamee v. Burke, 136 N.W. 1127, 29 S.D. 493, 1912 S.D. LEXIS 175 (S.D. 1912).

Pincite

Opinion

SMITH), J.

Appeal from the circuit court of Miner county. Plaintiff sued to recover $209.90 for medical services and expenses incidental thereto, etc. Such services were alleged -to have been rendered during the last illness of defendant’s husband. The complaint alleges that the defendant directly assumed and agreed to pay for the services rendered in consideration of the husband deeding to her all his property. The latter allegation was denied by the answer, but at the trial no issue was made as to her liability, which was admitted as to part of the services sued for. The real defense interposed at the trial was that plaintiff had been discharged as attending physician after but a small part of the services charged for had been rendered. Jury trial and verdict for plaintiff in the sum of $85.75. Plaintiff appeals, demanding a new trial because of insufficiency of the evidence.

The statement of facts in the briefs contains no assignments of error, but by searching through the original record we have been able to find the motion for a new trial containing specifications of insufficiency of evidence. The specifications recite that “the evidence shows the services rendered by the plaintiff and accepted by defendant and defendant’s husband, including materials necessarily furnished in connection with said services and disbursements made, all of which defendant agreed to pay, were of a reasonable value in excess of $85.75, the amount of the verdict, and were of the value of $210.75 as claimed by plaintiff.”

We have examined the evidence with sufficient care to make it clear to our minds that there was a serious conflict of evidence at the trial, and that there is evidence which, if believed by the jury, would warrant a verdict of an amount as small as that returned by the jury. No useful purpose would be subserved by a recapitulation or review of the evidence, and we shall not attempt-it. The rule that a verdict upon conflicting evidence will [496]*496not be disturbed by this court on appeal has been so often announced that a citation of authorities is unnecessary.

The order and judgment of the trial court are affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

SMITH), J.

Appeal from the circuit court of Miner county. Plaintiff sued to recover $209.90 for medical services and expenses incidental thereto, etc. Such services were alleged -to have been rendered during the last illness of defendant’s husband. The complaint alleges that the defendant directly assumed and agreed to pay for the services rendered in consideration of the husband deeding to her all his property. The latter allegation was denied by the answer, but at the trial no issue was made as to her liability, which was admitted as to part of the services sued for. The real defense interposed at the trial was that plaintiff had been discharged as attending physician after but a small part of the services charged for had been rendered. Jury trial and verdict for plaintiff in the sum of $85.75. Plaintiff appeals, demanding a new trial because of insufficiency of the evidence.

The statement of facts in the briefs contains no assignments of error, but by searching through the original record we have been able to find the motion for a new trial containing specifications of insufficiency of evidence. The specifications recite that “the evidence shows the services rendered by the plaintiff and accepted by defendant and defendant’s husband, including materials necessarily furnished in connection with said services and disbursements made, all of which defendant agreed to pay, were of a reasonable value in excess of $85.75, the amount of the verdict, and were of the value of $210.75 as claimed by plaintiff.”

We have examined the evidence with sufficient care to make it clear to our minds that there was a serious conflict of evidence at the trial, and that there is evidence which, if believed by the jury, would warrant a verdict of an amount as small as that returned by the jury. No useful purpose would be subserved by a recapitulation or review of the evidence, and we shall not attempt-it. The rule that a verdict upon conflicting evidence will [496]*496not be disturbed by this court on appeal has been so often announced that a citation of authorities is unnecessary.

The order and judgment of the trial court are affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

136 N.W. 1127, 29 S.D. 493, 1912 S.D. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnamee-v-burke-sd-1912.