175 N.W. 619 | N.D. | 1919
Lead Opinion
The plaintiff, a physician and surgeon, brought this action to recover for certain professional services. In his complaint he alleges that he is duly licensed to practise in this state; that at Leonard, North -Dakota, between March 9, 1911, and May 1, 1911, at defendant’s special instance and request, he rendered medical and surgical services for the said defendant of the reasonable and agreed value of $272, and which said amount the defendant then and there agreed to pay said plaintiff; that no part of said account has been paid except the sum of $66, paid between March 9, 1911, and December 23, 1911. The answer admits that the plaintiff is a physician and surgeon duly licensed to practise in this state; but denies all the other averments of the complaint. The case was tried to a jury upon the issues thus framed. A verdict was returned for the plaintiff for the amount demanded in the complaint. The defendant moved in the alternative for judgment notwithstanding the verdict or for a new trial. The motion was denied, and the defendant has appealed from the judgment and from the order denying such motion.
It appears from the evidence that the professional services for which plaintiff seeks to recover were rendered in the treatment of one Walter Geyer, a son of the defendant. At the time the services were rendered Walter Geyer was about twenty-four years of age. He was making his home with his parents, but was operating an adjoining farm for himself. The plaintiff testified that about March 9, 1911, one of Walter G'eyer’s brothers came to plaintiff’s office, and informed plaintiff of Walter Geyer’s illness, and obtained some medicine for him. The plaintiff further testified that at that time the brother stated that he
We are of the opinion that the court erred in permitting the plaintiff to testify to the statements which he claims defendant’s son made at the time he called plaintiff to treat Walter Geyer. The defendant denied that he had sent the son, or had in any manner requested or authorized' the calling' of the plaintiff. Plaintiff made no showing whatever that the son had actually been sent by the defendant. Clearly plaintiff’s testimony as to what the son said would not be admissible to prove that the defendant had sent him. It was purely hearsay. And in view of the condition of the evidence in this case, we are not prepared to say that the admission of this evidence did not affect the result.
The defendant, also, contends that there was no evidence tending to show either that the compensation of the plaintiff had been agreed upon, or that his services were reasonably worth the amount awarded. We believe that this contention is well founded. There is no evidence tending to show that the amount of plaintiff’s compensation was fixed by agreement. Neither did the plaintiff nor anyone else testify that the services rendered by the plaintiff were reasonably worth the amount which the plaintiff recovered or any other amount. The plaintiff contented ■ himself by stating what he had done, and identifying certain charges he had made upon his books therefor. Nowhere did he testify that the services were reasonably worth what he charged therefor. In. the absence of an express agreement as to amount, the law implies a promise to pay for a physician’s services as much as they are reasonably and ordinarily worth on the professional market. 21 R. C. L. p. 415. Where a physician seeks to recover for such services he has the burden of proving the value thereof. 9 Enc. Ev. 828.
The judgment and order appealed from must be reversed and the cause remanded for a new trial. It is so ordered.
Concurrence Opinion
I concur in the result.
Dissenting Opinion
I dissent on tbe ground that the record shows no issue on the value of the services.