Gustason v. Speak

THOMPSON (IRA F.), J.

The action herein was one for malicious prosecution. The jury returned a verdict in favor of the defendants. This is an appeal from the judgment, it being contended by the appellant that the evidence is insuffi

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cient to support the verdict, or perhaps it would be more accurate to say that the evidence compelled a verdict for the plaintiff. '

The appellant, a licensed osteopathic physician and surgeon, was employed by the respondent A. J. Speak to attend his wife. According to the testimony of this respondent the doctor made three trips to his house before Mrs. Speak was taken to the hospital to be operated on, in accordance with the advice of the appellant. The respondent A. J. Speak claimed and testified that he discharged the appellant the same evening his wife was taken to the hospital. According to the appellant, however, he had charge of the operation and selected an assistant and a doctor to administer the anesthetic, and called on the patient every day for three weeks and occasionally thereafter. Consequently a dispute arose over his charge for services rendered. The appellant claimed $200, the respondent A. J. Speak asserting that it should be very much less. After some telephonic conversation, according to the testimony of respondents, the appellant agreed to accept the offer of A. J. Speak to settle for $125. On the day following this conversation he mailed appellant a check for the sum mentioned, but by return mail received back a letter in which the doctor declined the sum tendered by the check as payment in full. Mr. Speak then consulted an. attorney and on June 9th, the attorney employed^ mailed appellant a second check for $25, “dated, however, prior to the first one and which, together with the one for $125 still held by appellant, made $150, the sum which the lawyer’s letter stated they had agreed upon as a settlement of the claim. The appellant, however, testified that this sum was to be paid within a limited time in order to constitute a settlement and therefore the controversy continued to proceed quite merrily, aided and abetted by the disquieting ministrations of a collection agency, and finally culminating in an action in the justice’s court and a judgment for $15, without costs, and an appeal to the superior court where appellant was awarded the sum of $155.56. In the meantime, and prior to the filing of the action and about June 16th, appellant placed a sticker over the words “this is in settlement for all services rendered to date” appearing on the lower left-hand corner of the first check, bearing the words: “Applies on account of statement rendered” with