155 Mo. App. 548 | Mo. Ct. App. | 1911
This is a suit in quantum meruit for the reasonable value of professional services of a surgeon in performing an operation on defendant’s infant child. Plaintiff recovered and defendant prosecutes the appeal.
Defendant relies upon the case of Detwiler v. Bowers, 9 Pa. Sup. Ct. 473, where it is said a surgical operation of doubtful advantage is not a necessary for which a non-assenting father is liable upon an order given to the surgeon by the wife. But the facts in that case are somewhat dissimilar from this one, for there the malady from which the child suffered and for which the operation was performed at the instance of the mother without the knowledge and against the consent of the father was a cancerous tumor and the parents had been advised the disease would immediately reveal itself again though an operation were had. Indeed, this prediction proved to be true in that case, for though several operations Avere had, each time the cancerous growth recurred. On those facts, the court deemed the operation so known to be'of doubtful advantage as one not falling within the category of necessaries furnished the child for which, the i>arent should answer. Here the facts are entirely dissimilar, for naught in the case suggests that the malady-abscess on the liver — might return if once removed, and it is conceded such was the only remaining chance for the recovery of the child. The fact that defendant objected to the child being removed from home and brought to St. Louis for treatment by Dr. French is wholly unimportant in view of the further fact that he nevertheless permitted the removal to be made. Both the mother of the child and the family physician say they did not inform Dr. French that defendant objected to an operation, but only that he preferred the child to remain at home. Defendant having acquiesced in the act of the mother in bringing .the little one to plaintiff in St. Louis for treatment, the case must be viewed as though the wife was his agent for the purpose. Ño one can doubt the implied agency of the Avife to pledge her husband’s credit for necessaries for herself or his minor children, according to the circumstances of the case.
The case concedes that the only chance for saving the life of the child was the operation, which plaintiff performed in a careful and skillful manner. The fact the patient subsequently died without fault of the surgeon is wholly immaterial to the obligation of defendant to pay the reasonable value of his services. [Logan v. Field, 192 Mo. 54, 90 S. W. 127.] In these circumstances, we can imagine nothing more highly necessary to the-welfare of the child or more within the obligation of the parent than the services rendered, for it was the one and only hope of the little one’s continued life to bless and cheer the parents. It is obvious, too, this service was rendered at the instance and request of defendant’s wife, who possessed prima facie authority to bind him for suck necessaries .as were furnished to herself or his minor children. Infection was present and about to progress; the mother unattended, except by the family physician, but with the father’s consent, was in a great city with their child dangerously ill seeking some measure of relief. So situate, was the mother to await communication with her husband at a distant part of the state while the spell of almost immediate dissolution hovered over the little one, before asserting her authority to commit him to respond as for necessaries in compensation of services which offered the one chance for