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THORPE v. SCHOENBRUN ET VIR (12/12/63)

December 12, 1963

THORPE
v.
SCHOENBRUN ET VIR, APPELLANTS.



Appeal, No. 175, April T., 1963, from judgment of County Court of Allegheny County, No. 1250 of 1960, in case of Harvey E. Thorpe v. Fannie Schoenbrun et vir. Judgment affirmed.

COUNSEL

Edward A. Tobias, with him Tobias & Tobias, for appellants.

David Marlin Laufe, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 202 Pa. Super. Page 376]

OPINION BY ERVIN, J.

The plaintiff, Harvey E. Thorpe, specialist in ophthalmology, surgery and care and treatment of diseases of the eye, sued the defendants, Fannie Schoenbrun and Adolph Schoenbrun, her husband, for medical services rendered for the wife-defendant between July 7, 1952 through July 19, 1954, the suit having been commenced on July 12, 1960. The defendants filed an answer averring that the charges were not fair, reasonable or proper. They also, under new matter, pleaded the statute of limitations in full bar of the plaintiff's claim. The plaintiff, in a reply to the new matter, averred that the last medical treatment and services were performed on July 19, 1954 and "that said medical treatment was an essential, necessary and integral part of the full, entire and continuous services required by the Defendant,

[ 202 Pa. Super. Page 377]

Fannie Schoenbrun ... and that the relation of Doctor and patient was not terminated until on or after the date of last medical treatment which was, as aforestated, July 19, 1954."

In the charge to the jury the trial judge said: "... if you believe the plaintiff's story that this was a continuing contract, that he had not dismissed this patient, then the statute would not apply and you would find a certain verdict for the plaintiff." He further said: "... I have decided it is a question of fact for you, the Jury, to decide as to whether the statute of limitations should be applied to this case."

The trial judge left to the jury the question of the reasonable value of the services rendered to the defendant by the plaintiff.

The jury found a verdict for the plaintiff in the sum of $1,250.00 (without interest). After post-trial motions were disposed of by the court en banc, judgment was entered on the verdict. The defendants appealed.

The sole question presented by this appeal is whether the contract is severable or whether it was an entire contract continuing throughout the rendition of all of the medical services. The jury having found for the plaintiff, we must on this appeal consider that it found the contract to be entire. This finding is binding upon us if there was credible evidence ...


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