Detwiler v. Bowers
9 Pa. Super. 473
Pa. Super. Ct.
1899
Check Treatment

Opinion by

Orlady, J.,

The plaintiff, a physician and surgeon in the city of Lancaster, was consulted by the wife of the defendant in regard to the removal of a malignant, cancerous growth on the neck of her iive-year-old daughter. At that time the defendant, a day laborer in a tobacco warehouse, was living, with his wife, in the same city, and there is nothing in the case to indicate that he had not faithfully discharged all the duties of an affectionate father to this child, who had been examined by five resident surgeons of good repute, each and all of whom diagnosed the disease as recurrent sarcoma or cancer, and had refused to remove the tumor for the reason that it would certainly return in a short time in a more dangerous form, or in a more vital part of the body, and that an operation would be likely to hasten the death of the child.

In November, 1893, the plaintiff, at the request of the mother and without the knowledge or consent of the father, removed a malignant tumor of a size equal to a quart jar, and soon after presented his bill for services to the father, who refused to pay. A suit was brought before a magistrate, a judgment for $150 was recovered against him, which he paid in February, 1894. Within a week after this operation the plaintiff observed a similar growth in the child’s armpit, and in November, 1894, at the request of the mother and without the knowledge or consent of the father, he performed a second operation, by which a large number of cancerous tumors were removed from the armpit. The disease soon after developed in the abdominal glands resulting in the death of the child in June, 1895. The *478father refused to pay the charge of the plaintiff for the second operation and a judgment for $65.00 was recovered against him in the court below, from which this appeal was taken. The plaintiff admits that the disease was a necessarily fatal one, and that it finally induced the death of the child, but urges that the first operation was necessary, in his judgment, to prolong the life of the patient, for the reason that the tumor se-, riously interfered with the child’s breathing, and was rapidly increasing in size. This fact is denied by the defendant, and the surgeons called by him described a much more simple operation which would have afforded relief, and not have been so dangerous, nor so likely to induce the development of the disease in other glands. No special reason is given for the necessity of performing the second operation. While it is not shown that the plaintiff had direct notice from the defendant to not perform the second operation, it is clearly shown that he objected to the first, and that the wife knew of this fact. A husband’s liability for necessaries furnished to the wife and family, or that medical attendance is such a necessity, cannot be questioned; and he is liable whether they are furnished with or without his knowledge: Moore v. Copley, 165 Pa. 294. Even if they are contracted for by the wife on the credit of her separate estate, the husband is primarily liable: Roll v. Davison, 165 Pa. 392; Waesch’s Estate, 166 Pa. 204. But he is liable only for such necessaries as are suitable to his situation and condition in life. If a tradesman furnishes what is not reasonable or prudent he parts with his wares at his peril, and the husband is not liable, except by his assent either express or reasonably implied. It cannot be, that a husband whose sole income is the wages of a day laborer would be liable, on the sole order of the wife, for extravagant purchases that are wholly disproportionate to his known condition in life. As to what are necessaries for either a married woman or a minor is a question that is susceptible of no sharp definition, and is generally a question for the jury: Mohney v. Evans, 51 Pa. 80. It is impossible to state a comprehensive definition of family necessaries, they_ must be left for cases to define as cases arise: Parke v. Kleeber, 37 Pa. 251. This was not an emergency case as in an accident, where a foreign substance is lodged in the throat, nostrils, or ear of a child, and a surgical operation is *479imperatively demanded to save life or relieve great suffering. Very respectable authority is adduced by the defendant to show that these heroic operations were injudicious experiments if not mistakes; such service ¡ are unlike the furnishing of food, clothing, medicine, trade implements, or conveniences of refined society, etc. The plaintiff describes it as a difficult and dangerous operation which was to afford temporary relief in an incurable case. A surgical operation of such doubtful advantage is not a necessary for which a nonassenting father is liable. The price charged may be a reasonable one, but that is not the question; the known condition of the defendant’s family; the absence of inquiry of the father in regard to this hazardous operation; and his known dissent to the first operation, made it incumbent upon the surgeon to make due inquiry of the person who was so naturally and pecuniarily interested as a father. In addition to the disputed necessity for the second operation there were other matters proper for paternal reflection, such as the amount of the charges, the person who should operate, the opportunity of being present when the child would be subjected to the surgeon’s knife, with other reasons naturally suggested by the condition of the case, which should have been regarded by the plaintiff. Whether articles of a certain kind or certain subjects of expenditure are or are not necessaries is, under the decided cases, often a question of law, but the quantity and extent of service or supply is generally for the jury. The liability of the husband is based on 'the implied agency of the wife to act for him in those matters which the dictates of humanity and societjr require that he should perform. The defense to this claim was not alone that the services were rendered without the father’s direction and knowledge, but that the operation was not such a necessary as to make him liable therefor. On the trial below the service of the plaintiff was treated as that of a family physician. The employment was of a very different nature. The plaintiff was' consulted as a surgeon and managed the case accordingly; and while the two offices are frequently performed by the same person, the evidence shows the distinctive differences in the management of cases requiring grave operations. It might be that the defendant would be liable for the usual and ordinary service of a physician and for the medicine furnished or prescribed, *480and yet not be liable for tbe special and extraordinary services of a surgeon. The first are held to be necessaries but the second are not, nor, under the facts in this case, do we think should be so held.

The fourth, fifth, seventh, eighth and ninth assignments of error are sustained, the judgment is reversed and a venire facias de novo awarded.