111 N.Y.S. 153 | N.Y. App. Div. | 1908
Lead Opinion
The action was brought to recover for medical services. The complaint alleges that between the 11th of Hovember, 1903, and the 17th day of January, 1904, the plaintiff, as a physician, rendered certain professional services at the special instance and request of the defendant in and about the treatment of the defendant’s daughter, Mrs. J. J. Bradley; that the services were reasonably worth the sum of
Both sides having rested, the defendant renewed the motion to dismiss the complaint, which was denied. The court submitted the question to the jury who found a verdict for the plaintiff and from which the appellant appealed to the Appellate Term where it was affirmed, and then appealed to this court.
The evidence from which plaintiff seeks to infer a promise of the defendant to pay for the services rendered by plaintiff is that defendant requested the plaintiff to attend her daughter who was seriously ill and she exhibited much anxiety about the condition of her daughter. The defendant had great confidence in the plaintiff who had been her family physician for many years and was anxious that he should see her daughter; that the doctor refused the request of the defendant, insisting upon the consent of the patient’s husband and the defendant went to the office of the physician and as a result of what there happened the plaintiff consented to and did take charge of the case and rendered services for which a recovery is sought. The plaintiff refused to act upon any employment by the defendant and would only undertake the case with what he called the consent of the person who was legally responsible for the services that he was asked to render and who was the one to whom he would naturally look for payment had he united in the request. All that the defendant did was to urge plaintiff to act as her daughter’s physician. There was nothing that was said by the defendant from which could be inferred a promise to be personally responsible for the services rendered, nor were services rendered to her or to one to whom she was under an obligation to provide a physician.
The question, therefore, presented is whether a person is respon
There was also an error committed on the trial to which attention should be called. The plaintiff had called an eminent physician in consultation, and this physician was called as a witness to testify as. to the value of the plaintiff’s services. He testified that the services were worth $2,000, the amount of the plaintiff’s bill. Hpon cross-examination he testified that he rendered a bill against the defendant for his services which she refused to pay and he brought suit against her. He was then asked whether he failed to recover, which was objected to by the plaintiff. The court characterized the question as absolutely improper and stated to counsel that he should know better. Counsel stated that it was asked upon cross-examination as to the bias of the witness against the plaintiff, and the court allowed the defendant an exception. I think this question was proper and that the criticism of the defendant’s counsel by the court was unjustified. The witness was called as an expert. He had testified as to the value of the plaintiff’s services, fixing the value at the same amount fixed by the plaintiff and which was the amount sued for, and it was proper to allow upon cross-examination any question to show that the witness had a prejudice or bias against the party against whom he was testifying. This was especially important in relation to testimony of this character which is not as to the existence of a fact about which the witness could be presumed to testify correctly, but about a question of opinion in relation to the value of services which is very liable to be largely influenced by feelings of antagonism or friendship.
The judgment appealed from must be reversed and a new trial ordered, with costs to the defendant to abide the event.
McLaughlin and Scott, JJ., concurred; Houghton and Laughlin, JJ., dissented.
Dissenting Opinion
I cannot assent to the proposition that the plaintiff did not make a prima facie case .of hiring by the defendant. I assume it must be conceded to be the law that a physician is entitled to recover
The only principle to observe in determining whether the parent is liable to pay in case of necessaries like medical attendance, is the presumption that the contract was made by the parent in behalf of the person primarily liable, which in the present cáse was the husband of the daughter. The moment that presumption is overcome the contract of hiring must be given effect and the parent must pay.
-The testimony of the plaintiff is that the defendant telephoned to him asking if he had been called to see her married daughter who was very ill, and upon his replying that he had .not, asked if he would go and see her, and the plaintiff replied that he could not go without the consent of the daughter’s husband. Testifying further as to conversations, he said: “ IVIrs. Hughes said further to me that she believed her son-in-law objected to having me called in ; * * * that I the objection made by her son-in-law to the calling in of myself into the case had alarmed her.” This conversation was about the first of November, and znatters seezn to have rested as they were for ten or twelve days, when on the evening of the twelfth of November the plaintiff on returning to his office fouzzd the defendant and her son-in-law waiting for him. The son-in-law was introduced and the defendant, in his presence, asked the plaintiff if he “ would go up and see her daughter, that she was dangerously ill.” The husband left, the defendant remaining in the office to take the plaintiff to her daughter in the caz-riage in which she had come, which she did. While the plaintiff was preparing to go with her “ she repeated what she had said on the telephone with regard to her anxiety to have me called in earlier in the case, and she repeated then that the reason why I had zzot beezz called in was the objection on the part of her son-in-law.” After the plaintiff had znade an examination of the ‘condition of the daughter he told the defendant that he would like to withdraw frozn the case because of the condition in which he found the patient. In response the defendant said: “ Doctor, you have been my friend ; you have attended my family ; you have attended my husband and our children, and I beg of you, for God’s sake, don’t desert Maude.” Thereupon the plaintiff con
It is perfectly manifest from what took place that the defendant brought her son-in-law to the plaintiff’s office, not for the purpose of having him solicit the plaintiff to attend his wife, the defendant’s daughter, but simply for the purpose of showing the plaintiff that the son-in-law had withdrawn his objections to the defendant having the plaintiff treat her. The plaintiff testifies that he so understood the interview, and that nothing was said which could lead him to believe that the husband had come there to engage his services, or to hire him, but that as he assumed his only purpose was to evidence his consent that his mother-in-law might employ him.
The defendant denied that she asked the plaintiff to attend her daughter, and said that at the interview with plaintiff at his office the son-in-law and not herself requested that he should do so. On cross-examination she admits that she called him' on the telephone, but says she simply asked him if he had been called and said nothing further, and that she did not regard her daughter as seriously ill and never asked thó plaintiff what her malady was, or expressed any wish that he continue to treat her.
The jury very properly disbelieved her story and credited that of the plaintiff.
The case of Crane v. Baudouine (55 N. Y. 256) appears to be curiously misunderstood. All that case holds, or that any case in our jurisdiction dealing with the right of a physician to recover for services holds, is that expressions of natural anxiety and solicitude concerning treatment of a sick relative or friend, or the summoning of a physician by a stranger as an act of humanity, shall not be tortured into a contract of employment.
Veitch v. Russell (3 Ad. & Ell. [N. S.] 928) cannot be regarded
In Boyd v. Sappington (4 Watts [Penn.], 247) the judgment below was reversed' on the ground that the father was not permitted to show that the son for whom the physician’s services were rendered had property of his own and was doing business for himself, and this upon the ground that it went to the probability of the doctor having rendered services on account of the son alone.
The meager authorities on the subject are reviewed in Foster v. Meeks (18 Misc. Rep. 461), and it is there held that one who requests a physician to attend another person, without disclosing that he is acting only as agent, becomes liable to pay the physician’s bill. To the same effect is Bradley v. Dodge (45 How. Pr. 57).
The evidence in the present case cannot be tortured into proving that the defendant hired the plaintiff on behalf of her daughter’s husband. He had his own phy sician in attendance and objected to calling the plaintiff, and finally yielded to the importunities of the defendant and permitted her to call the doctor she desired.
Folger, J., in Crane v. Baudouine (supra), which is relied upon for a reversal of this judgment, expressly states that a physician may recover upon an implied contract, and that an express contract is not a necessity7. In that case the referee had found against the physician and the General Term had reversed the judgment, and the Court of Appeals simply held that the referee was best qualified to pass upon the question of fact as to whether there was a hiring or not in view of the defendant’s denial of employment, and that the evidence was not so preponderating in plaintiff’s favor as to authorize the overturning of the decision.
To my mind such is the situation in the present case, and the jury having found in favor of plaintiff its verdict should not be disturbed.
There are no errors of. law requiring a reversal. Plaintiff’s witness, Dr. Cleveland, had been fully interrogated as to his having
Laughlin, J., concurred.
Determination reversed and new trial ordered, costs to defendant to abide event.