51 Ky. 465 | Ky. Ct. App. | 1851
delivered the opinion of the Court.
This action of assumpsit was brought by Menifee, a physician, to recover the amount of his bill for medi
It cannot be doubted, that upon the facts offered to , , be proved, and which are now- to be taken as true, the plaintiff was prima facie liable to an action. Even if there had been no warning to- him by the defendant’s wife, it was his duty in passing.from, his patients who were afflicted with an infectious and dangerous disease to others who were not so affected, to take such precautions as experience may have shown to be necessary to prevent the communication of the infection bv his own . „ , , . r , visits, isut when m the very commencement of the services for which a considerable portion of the-charges now in question were made, he was expressly warned by the defendant’s wife, acting presumably for her husband as well as for herself and the rest of the family, that if he attended small pox patients, he must not-come there, but they would employ another physician,., his promises of compliance, constituting as they did, the inducement and condition of his further employment, entered into and formed a part of the consideration of the contract on which he sues. And whether. they be regarded as being in the nature of a warranty, that the family should not be subject to the risk of small pox by his visits, or as having been intended to lull their apprehensions; and thus to procure a continuance 1 r it. of his employment by a delusive statement, their viola-tlon and the consequent damage, constitute in our opinion, an available ground for reducing the recovery for the services, in the performance of which, the violation ■of these promises and the consequent damage occurred, After the conversation which occurred during the first -and second visits of the plaintiff, the defendant and his family had a right to believe that the plaintiff was not visiting small pox patients, since he had in effect, prom--ised that he would not visit the defendant while he was attending on such patients, or that he would-not attend •n such patients while he was visiting the defendant.
In-considering the question upon the rejection of this evidence, we of course take the strongest presumption against the plaintiff which the rejected evidence authorizes. In deciding that the evidence was admissible, we only decide that the facts offered to be proved and the inferences deducible from them, are entitled prima facie, to affect the damages recoverable by the plaintiff, who, if the evidence had been admitted, would have had and will have upon another trial, the privilege of disproving the facts relied on, or of offering such explanatory or mitigating evidence as may be in his power. As we have no right to anticipate bis answer, it would be inappropriate to say any thing as to the effect of any particular answer which he may attempt.
In support of the principle of this opinion, we refer to the case of Culver vs Blake, (6 B. Mon. 528,) which allows proof of breach of warranty or of fraudulent
Wherefore the judgment is reversed, and the cause remanded for a new trial in conformity with the principles of this opinion.