Mock v. Kelly

| Ala. | Jan 15, 1842

ORMOND, J.

The charge of the Court below, is founded on the supposition, that a contract cannot be made with a physician, to pay him a reasonable price, if he .cures a disease of which.the patient is laboring, and nothing, if he fails; but that to constitute such a contract, a specific price must be agreed on. It is 'true, such contracts are rarely made, without a specific price being agreed on, and that higher than the ordinary rate of charging in such cases — the physician being in such a case, an insurer — but it is impossible to doubt that such a contract may be made, and that both parties would be bound by it. The inducement on the part of the physician to make such a contract, might be his desire to obtain employment, which he could not otherwise get, or it might proceed from his confidence in his ability to cure the case. But, be the inducement or motive what it might, if he makes such a contract, he is bound by it.

The Court also erred, in permitting the witness, who was not a physician, to prove the value of the services rendered. The exception.to the rule, that facts only can be given in evidence, exists alone in those cases where the fact to be ascertained is not referable to any certain data, but must, of necessity, rest in opinion merely. The value of the medical services rendered in this case, comes within the exception; and to ascertain it, resort must be had to those who, from their skill in such matters, are qualified to decide. But the witness in this case, does not appear to have had the necessary qualification to entitle his opinions to any weight; and, therefore, being of no value as evidence, should not have been received.

It is stated in the record, that a Thompsonian physician, who never practiced out of his own family, but who did not, of his own knowledge, know the facts of the case, had previously to this witness, proved the reasonableness of the charge. As this witness was not excepted to, vre express no opinion upon his competency. Supposing him to be competent, it would not remove the objection to the admission of this witness; it is impossible to say on which testimony the verdict was found.

Let the judgment be reversed, and the cause remanded.