Williams v. Brickell

37 Miss. 682 | Miss. | 1859

Harris, J.,

delivered the opinion of the court.

The defendant in error commenced his action in the Circuit Court of Hinds county against the plaintiff in error, to recover an account for $250, for four days’ service as a physician at Cooper’s Well, in September, 1855, during the prevalence of the yellow fever. The plaintiff in error filed his answer to this complaint, denying its allegations, upon which there was issue and verdict for defendant in error. Bills of exceptions were taken to the admission of certain testimony. A motion for a new trial was made and overruled, and judgment and exceptions to this ruling, and the cause is brought here upon writ of error for revision.

The first ground of error relied on is, that the court erred in permitting secondary evidence of a dispatch sent to Roach at Vicksburg, by the plaintiff in error, without requiring the production of the original, or proof accounting for its absence. This was clearly erroneous, but as there is proof in the record showing the admission, by plaintiff in error, of the contents of the dispatch, as well as that he sent it, the plaintiff in error could not ha.ve been prejudiced by this testimony, and it is not, therefore, good ground of reversal.

It will be unnecessary to examine the various assignments of error growing out of the instructions of the court, as no point is( made upon them in the briefs of counsel which we deem it necessary to notice under the view we take of this case. We will, therefore, confine our attention to the last ground of error which presents, the important question in the cause as to the liability of the plaintiff in error to the recovery had against him upon the whole evidence in this record.

It is not pretended by the defendant in error that there was any contract, either expressed or implied, beyond the terms of the dispatch appearing in the record; and the admission made to him by plaintiff in error, on his arrival at the Well, that he had sent the dispatch.

That dispatch was in these words : “ There are many cases of yellow fever at the Well; send out a physician this afternoon without fail. Signed, Inman Williams,” and addressed to Major Roach, at Vicksburg. . .

It appears from this record that Cooper’s Well is a public watering place, resorted to by invalids and others. That the plaintiff in error was, at the time of this dispatch, the agent of the stockholders, and himself a stockholder. That there were many visitors at the Well and boarders in the house kept by plaintiff in error. ■That the yellow fever appeared there, and spread among the visitors to an alarming extent. Under these circumstances, we are to consider this dispatch to ascertain whether it imparts any obligation on the plaintiff in error to become responsible to the physician who went to their relief, for the many sufferers who might need his services at the Well.

Contracts are not to be lightly inferred. In cases of this description, where men, prompted by motives of humanity alone, seek assistance for a suffering community, or even individuals incapable of helping themselves ; if men are to be made responsible for notifying physicians or others, of the distressing casualties which demand immediate aid around us, almost daily, the claims of pressing calamity may be disregarded, for fear that the kind messenger may become the victim of avarice through his generous sympathy.

In the case before us there is nothing to induce the belief that either the writer of the dispatch, or the person to whom it was addressed, or the defendant in error, understood or intended it as a contract or employment.

It simply announced a fact: “ There are many eases of yellow fever at the Well, and requested that a physician should be sent out that afternoon without fail.”

Can it be supposed for a moment that the writer intended, by this dispatch, to make the impression upon Major Roach, or upon the physician who should see the dispatch, that the plaintiff in error would pay for the services he might render to the various boarders and visitors who might have the yellow fever at the Well? Or is it possible that anybody could have mistaken the motive and. intent of the writer ? He was in the midst of distress, disease, and death, which commanded the sympathy and excited the fears of the whole community. They needed medical skill, and desired some friendly .aid from the neighboring city of Yicksburg. What so natural as that a human heart should desire to proclaim their distress and beg for assistance. And upon whom was it more incumbent to give notice of their situation, than upon the keeper of the hotel. What less could he have done or said to have avoided the charge now made against him ? Suppose that one travelling on our steamboats or railroads should find himself suddenly surrounded by the wounded and dying, from one of the distressing casualties incident to these modes of travel, and, prompted by duty and necessity, be should instantly seek some neighboring physician and others, and summon them to the relief of his distressed fellow-travellers. Because he did hot stop to bargain with human beings in a civilized community against personal liability, can it be reasonably inferred that he intended to assume upon himself the whole duty and responsibility which belonged to every citizen in their reach, as much as to him ? And yet the principle contended for would make him personally liable for all the service that might be rendered by all, whom the voice of humanity, speaking through him, had summoned to the scene. Neither reason, public policy, nor public necessity can tolerate such a principle.

A contract or “ agreement upon sufficient consideration,” cannot be implied from such conduct.

Let the judgment be reversed, cause remanded, and a venire de novo awarded.