101 N.E. 460 | NY | 1913
This action was brought to recover the reasonable value of services rendered by the plaintiff as a physician, at the request of the defendant, to the latter's daughter, a married woman living with her husband. The plaintiff was nonsuited at the trial, which was had in the City Court of the city of New York, and the judgment entered in favor of the defendant, dismissing the complaint, has been affirmed by the Appellate Term and by the Appellate Division of the Supreme Court. Leave was, then, given to the plaintiff to further appeal to this court.
The plaintiff did not allege, nor does he pretend, that there was any express promise by the defendant to pay him for his services; but relies upon the facts as raising an implied agreement on her part to do so. These facts, taking them, as we should, in their most favorable light upon the plaintiff's case, show that, on November 1st, the defendant called the plaintiff upon the telephone; informed him that her daughter was seriously ill and asked him to see her. He told her that he "could not go without the consent of the daughter's husband." Subsequently, on November 12th, the plaintiff had an interview, at his office, with the defendant and her son-in-law, Mr. Bradley. The defendant introduced her son-in-law and, in his presence, asked him if he would go up and see her daughter. Plaintiff said he was satisfied to go. To quote his testimony with respect to that interview, he said "that the introduction of Mr. Bradley by Mrs. Hughes was giving the consent to my going to see his wife." He had no conversation with Mr. Bradley; who, thereupon, left. Plaintiff, then, went with the *519 defendant and made an examination of the patient; as the result of which he informed Mrs. Hughes that he would like to withdraw from the case, because of the particularly grave condition of her daughter. To this she replied by appealing to him to stay in the case; saying, "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." (Maude being the name of the patient.) The plaintiff had been the defendant's family physician; but he had never attended the Bradleys. He continued in attendance upon the patient, rendering professional services, until some time in January, when she died. Nothing appears to have been said, at any time, with reference to the payment for plaintiff's services.
The only question upon this appeal is whether the defendant came under any obligation to the plaintiff. That turns upon whether the law will imply a promise on her part to compensate him. If we might assume the existence of a moral obligation, that would not determine that a legal, or enforceable, obligation existed. The rule in the United States has, generally, been that a physician is entitled to recover for his services, if not under an express contract therefor, then, under an implied agreement to pay quantum meruit; differing, in earlier times, from the rule at common law, which, in England, before the passage of the Medical Act of 1858, in the absence of a special agreement, denied to the physician the right to sue for his professional services; the theory of any payment to him being that of an honorarium. (Gibbon v. Budd, 2 H. C. 92; Battersby v.Lawrence, Car. M. 277.) 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, rendering professional services to a third person, if the relation to the patient of the person, who requests *520
them, be not such as imports the legal obligation to provide them. The courts below have followed the authority of Crane v.Baudouine, (
I am, therefore, of the opinion that it should be taken as the rule of law, too well settled upon authority to be now questioned, that a physician, in the absence of a special contract, may recover upon an implied agreement to pay for his services quantum meruit, when they have been rendered at the request of the patient, or of a person who, in the eye of the law, is regarded as being under a legal obligation to provide such professional services for the patient; such as a husband, or the parent of a minor child. In the present case, notwithstanding the anxiety, the importunity and the prayers of the defendant, how was the legal obligation of the husband shifted to, or assumed by, the defendant? According to the plaintiff's testimony, he refused to attend the patient until the husband had consented; which may be said to be a recognition, at least, of the marital relation, with its consequent responsibility, or liability. It, certainly, followed that, *522 when the husband's consent was given, an obligation arose on his part to pay the reasonable value of the services which the plaintiff might render. As there was no express promise by the defendant to pay, can we hold, upon the facts disclosed by the plaintiff's evidence, that there was, also, an implied promise on her part? It would be a simple matter, in cases where the physician is called upon to attend a person, at the instance of some one not standing in a responsible relation to the patient, to inform himself as to whom he shall look for his compensation.
For these reasons, I advise that the order of the Appellate Division be affirmed.
CULLEN, Ch. J., WILLARD BARTLETT, CHASE, CUDDEBACK and HOGAN, JJ., concur; MILLER, J., not sitting.
Order affirmed, with costs.