
    114 F. 10
    CORBUS v. LEONHARDT.
    No. 709.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 3, 1902.
    
      Maloney & Cobb, for plaintiff in error.
    Lorenzo S. B. Sawyer, for defendant in error.
    Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
   HAWLEY, District Judge

(after stating the facts as above).

1. The objections presented by the first assignment of error are based upon the ground that the testimony of Dr. Leonhardt comes within the provisions of section 858, Rev. St. (28 U.S.C.A. 631 note), and that by this section he was not a competent witness to any transactions and conversations between himself and defendant’s intestate. We are of opinion that the court did not err in admitting the testimony objected to. It is perhaps true, as claimed by the plaintiff in error, that there is no decision directly in point, but the decisions bearing upon the general question lead us to the conclusion that section 858 does not apply to territorial courts. Good v. Martin, 95 U.S. 90, 98, 24 L.Ed. 341; McAllister v. U. S., 141 U.S. 174, 11 S.Ct. 949, 45 L.Ed. 693; Thiede v. Utah, 159 U.S. 510, 515, 16 S.Ct. 62, 40 L.Ed. 237; The Coquitlam v. U. S., 163 U.S. 346, 351, 16 S.Ct. 1117, 41 L.Ed. 184; Jackson v. U. S., 42 C.C.A. 452, 102 F. 473, 479.

In Good v. Martin, supra, the court said: “Territorial courts are not courts of the United States, within the meaning of the constitution, as appears by all the authorities. Clinton v. Englebrect, 13 Wall. 434, 20 L.Ed. 659; Hornbuckle v. Toombs, 18 Wall. 648, 21 L.Ed. 966. A witness in civil cases cannot be excluded in the courts of the United Sfates because he or she is a party to or interested in the issue tried, but the provision has no application in the courts of a territory where a different rule prevails.”

Page v. Burnstine, 102 U.S. 664, 26 L.Ed. 268, cited by the plaintiff in error, is not in opposition to these views. That decision was rendered under certain provisions of the act providing a government for the District of Columbia, which are not applicable to Alaska. In the course of the opinion the court said: “These views do not at all conflict with the previous decisions of this court, holding that certain provisions of the General Statutes of the United States relating to the practice and proceedings in the ‘courts of the United States’ are locally inapplicable to territorial courts.”

By the provisions of section 3 of the “Act providing a civil government for Alaska,” approved May 17, 1884 (23 Stat. 24), there was “established a district court for said district, with the civil and criminal jurisdiction of district courts of the United States.”' By section 7 of this act it was provided “that the general laws of the state of Oregon now in force are hereby declared to be the law in said district, so far as the same may be applicable and not in conflict with the provisions of this act or the laws of the United States.” At the time this law was enacted there were no restrictions excluding witnesses from testifying in any case. I Hill’s Ann.Laws Or. § 710. These laws were in force in Alaska at the time this suit was brought and at the time of Robert Duncan’s death, and were applicable to the proceedings had in this case.

In so far as this case is concerned, there was ample evidence to sustain the verdict in the testimony of Dr. Leonhardt, independent of his testimony relating to “any transaction with or statement of the intestate.” The testimony as to his services, the value thereof, and that no part thereof had been paid, was clearly admissible. In Cowdery.v. McChesney, 124 Cal. 363, 366, 57 P. 221, the plaintiff was asked questions as follows: “Q. Has anything been paid to you since his death on account of any services rendered by you to him during his lifetime? * * * Q. If any balance upon any account was due to you upon the death of George M. Kasson, does that balance still remain unpaid?”

Objections were made to both questions on the ground that the plaintiff was not a competent witness to testify to such facts, under the provision of section 1880 of the Code of Civil Procedure, which is substantially the same as section 858, Rev.St. The court sustained the objection, to which ruling of the court plaintiff excepted. The supreme court said: “The inquiry contained in these questions did not relate to anything that occurred before the death of deceased, and does not fall under the inhibition of section 1880 of the Code of Civil Procedure. The ruling of the court was therefore erroneous.”

In relation to these matters there was no conflict. In fact, they stand admitted by the evidence contained in the record.

The defense interposed by plaintiff in error, that Dr. Leonhardt was not entitled to recover anything for medical services rendered Robert Duncan, Jr., because the services were performed under a contract with St. Ann’s Hospital, is not sustained by the evidence. The testimony on behalf of the plaintiff in error tended to show that Duncan was in the employ of the Alaska-Treadwell Gold Mining Company, and was a subscriber to St. Ann’s Hospital, and that a verbal contract existed between the mining company and the hospital that all of its employés, by paying $1 per month to the hospital, were entitled to medical attendance at the hospital free. There is a conflict in the evidence as to whether the subscribers were entitled to treatment at their homes. Dr. Leonhardt testified that the subscribers were entitled to be treated free by the hospital physician “if they entered the hospital, but not if they were treated at their homes.” He further testified that he never entered into any “contract to attend Such subscribers away from the hospital.” This is not denied. Any contract made by the subscribers with the mining company or with St. Ann’s Hospital might be binding upon them, whether the subscribers were treated at the hospital or at their homes; but the physician could not be bound unless he had agreed to the contract, assented to it, or acted under it.

2. The court did not err in refusing to give the instruction asked for by the plaintiff in error. The language of the instruction was misleading, if not erroneous. The receipt in question reads as follows:

“Juneau, Alaska, March 26, 1895.
Mr. Robert Duncan, Jr., to S. C. Leonhardt, Dr.
To attending Mrs. Duncan and baby............ $25 00
To ferry bills for Jan., $14.00: Feb., $10.00;
Mar., $10................................ 34 00
$59 00
“Rec’d payment in full to date.
“Sami. C. Leonhardt, M. D.”

It will be observed that this receipt does not include any services rendered to Robert Duncan, Jr. It was only prima facie evidence of what appears on the face of the receipt. It was for attending Mrs. Duncan and the baby, and, independent of the receipt, the doctor testified that he had been paid for such services. There was a direct conflict in the evidence as to whether or not at the time of its payment the doctor had not stated that it was in full of all charges for treating Mr. Duncan, as well as his wife and baby. That conflict was settled by the verdict of the jury. Moreover, the court gave proper instructions to the jury with reference to the receipt, and was not required to repeat it in language used by counsel, even if it was admitted to be correct in all particulars. Railroad Co. v. Roller, 41 C.C.A. 22, 100 F. 738, 759, 49 L.R.A. 77; Swensen v. Bender (C.C.A.) 114 F. 1; 11 Enc.Pl. & Prac. 288.

The judgment of the district court is affirmed, with costs.  