206 P. 454 | Cal. | 1922
Plaintiff recovered a judgment in the trial court for services rendered as a physician in connection with the serious illness of Frances S. Howard, a daughter of the decedent, Anna Dwight Howard. The principal question in the case is whether or not the decedent, Anna Dwight Howard, entered into a contract of employment with the plaintiff for such services.
The plaintiff filed a claim against the estate of Anna Dwight Howard "for professional services of a medico-legal character rendered to and for the said decedent, at her special instance and request, in relation to Frances S. Howard, daughter of said decedent from January 8, 1915, to April 21, 1915, inclusive, at San Francisco, in San Mateo County, and at Redwood City, California, said services consisting of medical advice and services given and rendered to the said daughter, consultations with the said decedent and her representatives in respect of said daughter, time, attention and services rendered in certain proceedings in the Superior Court in the County of San Mateo, of said State, had and taken to secure the appointment of said decedent guardian of the person and estate of her said daughter, $1802.50. For moneys expended in and about the performance of the above services 18.50. Total $1821.00." (Italics ours.) *576
The complaint substantially followed the language of the claim except that the words "in respect" are inserted before the words "to said daughter," so that while the complaint alleges the rendition of medical services to the daughter, the complaint refers to said medical services as rendered "with respect to said daughter." The rendition of the services sued for is not questioned. The question is whether or not the decedent was liable at all for the services so rendered. The facts in the main are undisputed. Frances S. Howard was thought to be so insane as to be dangerous and on January 7, 1915, Leon Morris, an attorney at law, representing a brother of Frances S. Howard, Teddy Howard, who was at that time fatally injured, and to protect the brother, swore to a complaint charging Frances S. Howard with being an insane person. She was arrested on that charge and while awaiting trial placed in a sanatorium conducted by Doctor Bering. The next day, January 8th, owing to the critical condition of Frances S. Howard, who was unconscious, Doctor Bering telephoned the plaintiff, an alienist, to attend her. Her mother, who was then in the east, arrived in San Francisco January 18, 1915. The plaintiff charges $379.50 for the services rendered by him to the daughter before the mother arrived in San Francisco. He bases his claim against the mother upon a conversation he held with her immediately upon her arrival while she was ill in bed in the Fairmont Hotel. As he was the sole witness who testified to this conversation we will first dispose of the appellant's objection to the competency of the plaintiff to testify against the defendant executor. The appellant objected to the deposition of the plaintiff on the ground that plaintiff was incompetent as a witness. [1] Under the provisions of section 1880, subdivision 3, of the Code of Civil Procedure, the plaintiff was an incompetent witness against the executor. This objection to the incompetency of the doctor could be waived (Kinley v. Largent,
After an investigation of the authorities we are satisfied that the ruling of the district court of appeal was correct. The phrase "subject to all legal exceptions" is one contained in the Practice Act with relation to the admissibility of depositions (secs. 430, 431, Practice Act, Stats. 1851, p. 119). It was held in Turner v. McIlhaney,
Similarly, in Jones v. Love,
The plaintiff testified in this action after the mother's death as follows concerning the conversation held with her:
". . . Mrs. Howard had me explain the condition of her daughter, the situation, what had been done, what was necessary to be done. This conference was quite prolonged, a couple of hours I saw her, and in expressing her appreciation and approval of my efforts and my advice and my opinion of her daughter's case, she assured me in words and in manner to goright ahead and give all of the services, be unsparing in my time in looking out for the daughter, that it was very necessary for her to be in the hands of someone competent to understand the condition, that I would be adequatelycompensated for my services."
Plaintiff relies upon this statement of the mother to establish his right to recover for the services already rendered by him in caring for the daughter, and those subsequently rendered in caring for her, and also as establishing a contract for the medical testimony of plaintiff as an expert given in the guardianship and in the insanity proceedings for which he charges about $899.50 as a reasonable fee.
Notwithstanding this alleged contract of employment, the plaintiff continued to make the charges upon his books against the daughter and subsequently brought suit against *579 the daughter for the full amount of the claim, alleging in that action that the services were performed at the special instanceand request of the daughter. The respondent failed to recover in his suit against the daughter, except for the services rendered when she was unconscious, and thereafter filed his claim against the estate of the mother and brought this action.
As supplementing the statement of the mother the plaintiff relies upon certain transactions had with others, to establish her liability, and we will consider these matters before further considering the effect of the mother's statement. During the pendency of the guardianship and insanity proceedings, the former having been instituted by relatives of the daughter in accordance with the advice of the plaintiff, the mother was represented in said proceedings by an attorney and the plaintiff relies somewhat upon his dealings with this attorney to support his contention that there was a contract of employment between himself and the mother. The plaintiff also testified and relies upon the fact that before the mother arrived in California a telegram was received from her and read to him by the daughter's attorney. The plaintiff's testimony in that regard is as follows: That after he had rendered emergency services to the unconscious daughter he met Mr. Halsey Rixford, representing himself as the personal attorney of Miss Frances Howard, who said "that the mother of the patient was ill in the East, that he had a telegram — no, had telegraphed — and had instructions from the relatives, and to employ the services in the interest and for Miss Frances Howard. Later on I saw a telegram, the contents of which I cannot recall, signed eitherby the mother or the brother-in-law, Mr. Whitell, stating that they were on the way out, and to arrange the matters in regard to the daughter — the only other relative here was her injured brother, a patient at the Adler Sanatarium, Mr. Teddy, Howard, hurt in an elevator falling — . . ." Again he said: "It [the telegram] stated that the mother and son-in-law were on the way out and to go ahead and take care of the daughter until their arrival."
The evidence was objected to on the ground that it was incompetent, irrelevant, and immaterial and hearsay. The court ruled as follows: " Oh, no, it is not, but until it is connected *580 that cannot be brought out. . . . The objection is overruled. However, the question has got to be connected before it can be used against your client."
A telegram from Mr. Whitell would clearly be immaterial and incompetent unless it was shown that he was acting for the mother, and evidence that a telegram was exhibited to the plaintiff by the attorney of the daughter, without some evidence that the telegram was sent by the mother or by her authority, would be immaterial.
A brother, William D.N. Howard, employed Dr. Teass to look after the daughter. Teddy Howard, the injured brother, employed Doctor Chidester. With reference to various relatives with whom he conferred, plaintiff testified: "I was assured to go aheadby all concerned, and I was to be adequately remunerated; no definite statement as to who should do that or as to how or what it should be." Plaintiff testified that he was in daily attendance upon the daughter up to the 30th of January.
The daughter was a wealthy woman and able to pay for the services rendered to her. The mother was not liable for such services in the absence of a contract on her part to pay therefor. Appellant claims that the evidence is altogether insufficient to establish either an express or an implied contract on the part of the mother to pay for the services rendered to the daughter. [2] The general rule is that one who calls upon a physician to render services to another is not liable for those services in the absence of an express agreement to pay therefor. (40 Cyc. 2808, 2809.) This applies where the physician is called by a parent to render services to an adult son or daughter (Crowell v. Donoho,
In the case of McGuire v. Hughes, supra, the rule is thus stated: "The general rule that, where a person requests of another the performance of services, which are performed, the law implies a promise by the former to pay their reasonable value, has no application in the case of a physician, *581 rendering professional services to a third person, if the relation to the patient of the person who requests them, be not such as imports the legal obligation to provide them."
It is clear, therefore, that the mere request of the mother that the plaintiff render services to the daughter would not be sufficient to imply a contract to pay for such services. In determining whether or not the mother agreed to pay for the services rendered to the daughter, it is important to bear in mind that the plaintiff advised the mother that the daughter was incompetent and for that reason should be placed under guardianship. Her statement that the plaintiff would be adequately compensated for services rendered and requesting him to render such services must be construed in the light of that situation. The amount of the compensation to be allowed to the plaintiff would be passed upon by the mother as guardian in the event that she was appointed, or if not, by such other relative as was appointed, and it was therefore important that plaintiff should know that the relatives of the patient, including the mother, desired that he should render services and were willing that he be compensated therefor. If it had been the intention either of the plaintiff or of the mother that she should become personally responsible for the payment of such services it would have been very simple for him to have secured from her a direct statement to that effect. The fact that the respondent carried the account on his books in the name of the daughter and subsequently brought suit against the daughter to recover the full amount claimed for all services rendered would seem clearly to indicate that he did not enter into an agreement with the mother that he would accept her as the primary debtor and there was nothing said by the mother as testified to by him which would indicate that the mother intended to assume that obligation in the place and stead of her daughter. On the contrary, it would seem that the mother studiously avoided stating that she would be personally responsible for the plaintiff's services.
If, however, it be assumed that the mother in fact promised to pay for the plaintiff's services another consideration would lead to the conclusion that there was no liability on the part of the mother for these services rendered to the daughter. Plaintiff was already performing services for the *582
daughter, presumably under a contract for that purpose. [3] The agreement of the mother to pay for such services so being rendered was a contract to answer for the debt of another. If the services of the plaintiff were performed upon the credit of the daughter or if she was in any degree liable for the indebtedness, then the mother would be a mere guarantor and the contract of guaranty not being in writing would be void under the statute of fraud. (Harris v. Frank,
[4] What has been said is even more emphatically true with reference to the antecedent obligation incurred by or on behalf of the daughter. In such a case, in order that the promise of the mother to answer for the antecedent obligation of the daughter should be considered an original obligation and therefore not required to be in writing, the statute provides that the promise is deemed original only when made upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation or from another person. There was nothing in the arrangement between the plaintiff and the mother to indicate that liability for the continued services of the plaintiff was to be assumed by the mother as a condition for the continued performance of services by the plaintiff in connection with her daughter. Assuming that the conversation between the plaintiff and the mother is susceptible of the construction that she was to pay for plaintiff's services, there was, therefore, no consideration for the agreement to pay for past *583
services and therefore such agreement, not being in writing, would be void. (Sec, 2794, subd.
Plaintiff was defeated in his suit against the daughter largely for the reason that his services were claimed by her to be hostile to her rather than for her benefit, as appears by the report of that decision. (McClenahan v. Howard,
There was no contract to pay the plaintiff any additional compensation for his services as an expert, or in preparation for testifying as such, hence he cannot recover for such expert testimony. In this connection it should be observed that the employment of the plaintiff as the physician for the daughter was inconsistent with the idea that he would be an expert witness, for by such employment he became incompetent as a witness without the daughter's consent (Code Civ. Proc., sec. 1881, subd. 4).
The evidence is insufficient to support the findings of the trial court in favor of the plaintiff.
Judgment reversed.
Shaw, C. J., Shurtleff, J., Lawlor, J., and Sloane, J., concurred.
Rehearing denied, the Justices qualified to act not agreeing upon a rehearing. *585