Jesserich v. Walruff

51 Mo. App. 270 | Mo. Ct. App. | 1892

Smith, P. J.

This was an action brought by the plaintiff, a practicing physician and surgeon, against the defendant, a brewer, to recover the sum of $300 for medical and surgical services performed for one Joseph Maeder, at the special instance and request of defendant. The answer was a general denial, accompanied with the plea of the statute of frauds. The cause was tried before the court which resulted in a judgment for defendant, to reverse which plaintiff has brought the case here by writ of error.

The plaintiff complains of the action of the trial court in refusing a number of instructions asked by him. The theory of these instructions is that, if the plaintiff was requested by the defendant to treat Maeder, and that the former complied with such request then the latter is liable, unless the former was given to fairly understand that he was called at the request of Maeder. Maeder was a mere employe of defendant in his brewery. The rule is now well established that, when a person requests a physician to perform service for a patient, the law does not raise an implied promise-to pay the reasonable value of the services so rendered, unless the relation of the person making the request to the patient is such as raises a legal obligation on his part to call in a physician and pay for his services. Meisenbach v. Cooperage Co., 45 Mo. App. 234, and the authorities there cited. Tested by this rule it is too plain for argument that the theory embraced in the plaintiff’s instructions was erroneous.

As between the defendant and Maeder, the law raised no implied promise to pay the plaintiff for the professional services rendered for Maeder by plaintiff at the request of defendant, and for that reason the defendant was not obliged to inform the plaintiff that he was called at the request of Maeder, or that he would not be responsible for the value of the professional services so rendered by plaintiff, in order to exempt himself from liability.

We think the court committed no error in refusing to adopt the theory of the plaintiff’s refused instructions, and, therefore, it results that the judgment must be affirmed.

All concur.