Where, in an action on an open account in a city court, the evidence authorized a finding against the defendant for only a part of the amount found against him by the jury, it was error to deny the defendant's certiorari.
DECIDED FEBRUARY 4, 1944. W. D. and R. L. Kennedy sued Rufus Holton in the city court of Soperton on an open account for $198.50. The jury found for the plaintiffs $98.50. The defendant's certiorari to the superior court was denied, and he excepted.
The account sued on consisted of the following items: To hospital, 9 days at $5, $45; glucose, $6; operating room and amfetin, $12; delivery room, anes., $10; drugs and serums, $7.50; special student nurse, $5; special nurse's board, $6; operation and after-treatment, $100; 3 days private nursing, $18; 4 nights private nursing, $24. Total $233.50. By cash 4/4/41, $35. Balance $198.50. The evidence showed that a Miss Coxwell was carried to the plaintiffs' hospital for an operation; that after she was operated on the defendant came in and told the superintendent of the hospital to do all she could for the patient, and to spare no expense; that the plaintiffs, acting on the statement of the defendant, put on special nurses, and made extra visits after the patient had left the hospital, the value and charges for which were not proved separately. There was no evidence that the defendant authorized the operation, or that any expense was incurred because of his alleged statement to the superintendent, except as to special nursing. There was no evidence that the defendant paid $35 on the account, except hearsay and conjecture. The defendant denied the account, and denied that he made the statement attributed to him, and denied that he paid $35 on the account. In his brief he concedes that he is liable for the special nurses, and claims credit for the $35 payment on the account. The jury was authorized to find against the defendant for special student nurse, $5; her board, $6; 3 days and 4 nights special nursing, $42; total, $53. The amount over and above that sum was unauthorized, and it was error to deny the certiorari.
Judgment reversed. Sutton, P. J., and Parker, J., concur. *Page 577