The Montgomery advertiser., 1902-06-11
MCDONALD. EXECUTOR V. HARRIS. Action against the Executor of an Els
 tate for the Value of Medical Ser.
 vices Rendered Deceased.-Appeal

tate for the Value of Medical Ser vices Rendered Deceased.-Appeal from Mobile Circuit Court.
 l. Evidence; competency of parties as affected bv interest.-In an action against the executor of an estate for the value of medical services rendered deceased py plaintiff. the widow of deceased ana de- fendant who is q son of deceased. are not competent witnesses when called by defendant to preve certain transactions between plaintiff and deceased. and cer- tain statements by deceased. Each or them is person who has a pecuniary in- tprest In the suit and comes within the exception provided by statute Code, Section l79D. (Austin V. Bean, 1ol~Ala.. 133. so far as it holds to the contrary
 2 Same: same.-In an action against the exccutor of an estate for the value or medical services rendered deceased the widow of deceased and defendant. who IS a son of deceased. are competent Wit nesses when called by defendfnt to prove certain declarations of the plainhn as to the character of deceased's complaint and directions as to his treatment. which were made and given to the witnesses out of the hearing and presence or de- ceased
 g. Same; charge.-In an action against the eXecutor of an estate for the value of medical services rendered deceased by plaintiff, the testimony of the widow or deceased regarding declarations made by plaintiff to her as to guarantee or the Nlirp or 0eGeaSeu IS nOt duiiilSSiDic tO show a contract with deceased; but when properly admitted for another purpose, 1t will not be limited to that purpose in its effect and a charge is not improper which directs the jury that they snail md for the defendant, if they believe from the evidence that plaintiff agreed with deceased not to charge him for services unless he effected cure.
 f. Expert testimony: hypothetical ques- ton not supported by the evidence.-In an action against the executor of an estate for the value of medical services rem lered the deceased. it is error to refuse to sustain an objection to a hypothetical question which supposes a detention Of a physician for an hour or more on va rous visits. when there is no evidence to show that the physician was detained at any time beyond the ordinary period or a visit.
 5. Plea: lack of skill on part of physi- cian.-In an action against the eXecutor of an estate for the value Of medical services rendered deceased by plaintiH, plea that sets up that the services were not rendered in a skilful and competent manner is subject to demurrer Such plea would require a verdict for the de- fendant upon proof that plaintiff did not exercise the highest degree of skill in the treatment of deceased and that he was not in the highest degree competent m his profession while the law imposes on Il physician the duty of exercising only that degree of skill and competency which physicians ordinarily exercise.
 c. Charge improper.-In an action against the executor of an estate for the value of medical services rendered de- ceased bv plaintiff a charge Is bad that affirms that the first count of the com plaint only claims for work and labor done and medical services rendered on the 20th day of August 1898 whereas the count is really for a sum stated alleged to be due on the 20th day of August, 1898, for work and labor. etc.
 z Same: not improper.-1n an action st the pNnpntDf of estate for the value of medical services rendered de- ceased by plaintiff. a charge is not i'm proper that directs tho jury for the plaintiff to recover he must show tn the reasonable satisfaction of the jury con tract. either express or implied, with de ceased to pay plaintiff the reasonable value of his services, irrespective of the result. /
 Reversed and remaudcd
 Opinion bV Mcclellan. C. J.