163 P. 445 | Or. | 1917
delivered the opinion of the court.
The testimony discloses substantially the following state of facts: While in the employ of the Hicks Company the plaintiff "was severely injured and taken to the Good Samaritan Hospital in Portland. The physician who first undertook the case was not securing satisfactory results. Bennett had known Ulbrand for many years, had employed him in various building projects and they were on friendly terms. He visited the injured man at the hospital, took considerable interest in his condition and volunteered his services in undertaking to collect damages from the Hicks Com
“In an action for money had and received, it is sufficient to show that by any process which was treated by the parties as a money transaction, the defendant has received money or its equivalent, which in equity and in good conscience belongs to and should be paid to the plaintiff; and this is true although the plaintiff may never have had actual manual custody of the specie in question.”
“If you find from the evidence that the defendant, Smith, received the thirty-three hundred dollars received in settlement of the claim of D. B. Ulbrand, for damages and appropriated the sum of $500 without the knowledge or consent of plaintiff, and without there being any agreement or understanding on the part of plaintiff, to the appropriation of said sum, with knowledge of said facts on his part, then such appropriation was wrongful, and your verdict must be in favor of plaintiff and against defendant Smith, if he had full knowledge of those facts.”
This'instruction is faulty in that it does not limit Smith’s liability to the repayment of the money or representative thereof in the handling of which he par
Again he excepts to this instruction:
“A physicián occupies towards and with his patient, a confidential and intimate trust relation and the law requires in all dealings between them the utmost fairness on the part of the physician; the transaction and position and condition of the patient must have been such as to warrant the inference that he had exercised deliberate judgment and had not been imposed upon or influenced to act in such a way as he would not have acted had he had the free use and exercise of his deliberate judgment; if the patient is weak mentally and physically and the law subjects contracts made by him to strict examination and requires scrutiny into its fairness and the fact that the contract was made under circumstances indicating undue influence or improper advantage gives rise to a presumption of fraud and the burden rests upon a physician claiming the benefit of a transaction had with a patient mentally and physically weak, to show the fairness of the transaction and that the patient understood its nature, and if the conveyance or writing appears unfair or there are suspicious circumstances surrounding it tending to show that the patient had been taken advantage of, it will be set aside and if the physician had knowledge or reason to believe that another is using" or taking advantage of his confidential relation with the patient to commit a fraud upon the patient or to use undue influence over the patient or take an unfair advantage of him in procuring him to sign a writing or contract or consent to a transaction without full and free use of his deliberate judgment or full understanding of the nature of the instrument or transaction and stands by and acquiesces in the acts and doings of the third party without taking steps to advise or protect his patient, he becomes a party to the defraudulent transaction and is equally responsible with the third party and cannot claim any benefit for himself from such instrument or transaction, and in this ease if you find from the evidence that the defendant, Bennett, exercised undue in*565 fluence or took an unfair advantage of plaintiff, D. B. Ulbrand, by reason of the confidential relation existing between defendant Smith, and said Ulbrand and overreached him and procured the signature under circumstances making the transaction a fraud upon Ulbrand, as I have instructed you and you find from the evidence that defendant Smith stood by, consented to or acquiesced in the acts of Bennett without advising Ulbrand or taking steps to protect him from the fraud, then I charge you that defendant Smith is equally responsible with the defendant, and the whole transaction should be set aside and neither defendant should be permitted to claim or retain any advantage by reason thereof.”
The power of attorney stands for what it is worth, namely, the right to settle the claim. So far as this action is concerned the plaintiff is bound by that settlement with the Hicks Company and its insurer because he relies upon it for the purpose of tracing the money into the hands of the defendants. The defendant Bennett, indeed, averred Ulbrand’s sanction to him not only to collect the money but also to disburse it, and as meeting the latter feature the plaintiff was entitled to attack the alleged instrument on the ground that he was enfeebled by sickness, as alleged in his reply, to such an extent as to be unable to understand or comprehend the execution of the instrument. But so far as the case is concerned thus far, the power of attorney justifies the very act upon which the plaintiff counts in charging the defendants with having received the money. Other errors are alleged but it is deemed unnecessary to consider them, but for the mistakes of instruction mentioned, the judgment is reversed and the cause remanded for further proceedings. Reversed and Remanded.