presence of poison in the body. Such a witness need not be a physician if he qualifies as a chemist or toxicologist. A physician, if shown to be competent, may testify as to the symptoms of any particular disease or as to whether death may have resulted from the effects of any poison. A chemist may give his opinion concerning scientific facts or knowledge, which his superior and scientific training may enable him to understand and explain and which are ordinarily beyond the reach of persons not skilled in chemistry.

The opinions of expert alienists or medical men who are shown to be competent from knowledge, study, or experience in such cases, are admissible as to the sanity or insanity of a person at a given time; and this evidence can be based upon their personal knowledge or information, or in answer to hypothetical questions based upon the testimony disclosed. Nonprofessional witnesses who are not experts, who have known and been familiar with the person whose mental condition is in question, may state facts within their personal knowledge and then give their opinions as to the sanity or insanity of a person. The subscribing witnesses to a will, whether they are experts or not, may give their opinions as to the sanity or insanity of the testator at the time he signed the will.

It has been held that a Roman Catholic priest, who is required by his priestly office to pass upon the sanity or mental state of those who receive the sacraments at his hands, is a qualified expert, and as such may answer a hypothetical question as to the sanity or insanity of an individual.

The family physician is assumed to have superior knowledge and means of information more than ordinary persons, and is competent to give an opinion as an expert.

The court in Connecticut Mutual Life Insurance Company versus Lathrop, 111, U. S., 612, states the law and the reasons of its general adoption:

"Whether an individual is sane or not is not always best solved by abstruse metaphysical speculations expressed in the technical language of medical science. The common sense, and we may add, the natural instincts, of mankind reject the supposition that only experts can approximate certainty upon such a subject."

"The truth is, that the statement of a non-professional witness as to the sanity or insanity, at a particular time of an individual whose appearance, manner, habits and conduct come under his personal observation is not the expression of a mere opinion. In form it is opinion, because it expresses an inference or conclusion based upon observation of the appearance, manner and motions of another person, of which a correct idea cannot be well communicated in words to others, without

embodying more or less the impressions and judgment of the witness. But in a substantial sense, and for every purpose essential to a safe conclusion, the mental condition of an individual as sane or insane is a fact. Not, indeed, a fact established by direct and positive proof, because in most, if not all cases it is impossible to determine with absolute certainty the precise mental condition of another. Yet, being founded on actual observation and being consistent with common experience and the ordinary manifestations of the condition of the mind, it is knowledge so far as the human intellect can acquire knowledge upon such subjects."

Opinions may be given by persons skilled therein concerning the running and management of railway trains and in railway management. Artisans, mechanics, and other persons skilled in any pursuit or calling may be examined in matters relative to his trade, concerning which he is shown to have peculiar and special knowledge.

Opinion evidence is not received if the facts can be otherwise ascertained and made intelligible to the jury, or if the question is one that men in general can understand and comprehend. The competency of an expert is a question for the court, and it must be clearly shown before his testimony can be received as that of an expert.

Counsel is entitled to put the case hypothetically, as he claims it to have been proved, and take the opinion of the witness thereon, it being for the jury to decide whether the question as put covers the case as proved. Juries are not bound by the opinion of an expert, and it is for them to decide what weight, if any, such evidence should be given. The court in these cases has no power over the jury.

An expert witness cannot be compelled to give his expert opinion unless he is compensated therefor. He is not liable for contempt in refusing to appear unless he is compensated, although he may be compelled to appear and testify to facts within his knowledge, the same as any other witness, his compensation in the latter case being the usual statutory fee.

It should not be forgotten that it is not the province of an expert witness to decide a case. Unfortunately, he may consider himself in such a position. His testimony is as to facts and to opinions, but in so far as they have a bearing on the case he should have nothing to do with them. His opinion, therefore, is not a dogmatic statement of fact, but merely his belief.

The criticism that is occasionally made of expert testimony that it is uncertain and contradictory and that experts can be found who will testify on both sides of the case, finds its analogy to a certain extent at least in practitioners of the law. Otherwise there would be no necessity for the higher courts if the lower ones were always free from error and

infallible. An expert should never forget that he is better qualified to testify and that he has a greater knowledge of the subject than the lawyers who cross-examine him. The expert should answer the questions according to his own knowledge and opinion and not be led by the lawyer into a pitfall.

CHAPTER XXIII.

SOME LEGAL POINTS AFFECTING PHYSICIANS

No adult person of sound mind is responsible to another for his or her health and cannot be held liable in any way for refusing to call in a physician. This, however, does not apply to minors. The common law requires that parents or guardians should care for those under their charge in sickness and in health, and they should do whatever may be necessary for their preservation, including the furnishing of medical attendance if necessary. Refusal or neglect on the part of the parent or guardian resulting in the death of the child or minor who is under such care renders parent or guardian criminally responsible by the common law. The opinions of parents or guardians, so far as they relate to special schools of medicine or to prejudices or superstitious ideas, are no excuse for disobeying the provisions of the common law. But a parent or guardian is not held criminally liable for the death of a child or minor upon mere hearsay of witnesses that the life might have been prolonged if medical attendance had been secured. It is necessary to show that the neglect of the parent or guardian actually shortened the child's life. It is not sufficient to show that the parent only neglected to use the ordinary means of saving the child's life.

A person who has suffered a personal injury by another may recover therefor, even though the injured person treats himself instead of calling a physician, where it is shown that the injured party pursued the same course of treatment that ordinarily would have been adopted by a physician.

Services rendered by a physician to a patient are in the nature of a contract, and the principles of the common law apply to the services of a physician as well as to the services of others. The contract may be formal or it may be implied. Where services are rendered by a physician and accepted by the patient, there is an implied contract to pay for them. Services rendered on Sunday are on the same footing as those rendered on weekdays, and the contract is binding, as such services are excepted in the statutes prohibiting labor on the Sabbath. Where a patient pays a physician to cure him of a disease and where a condition in the contract prescribes further treatment in the case of a non-cure, the

physician may retain the sum paid him where the patient neglected or refused further treatment.

A physician is not compelled to treat a case against his own inclination. He may elect whether he will treat it or not. If he decides to treat the patient the contract continues as long as the services last, unless the physician is expressly discharged by the patient or until the physician gives notice and opportunity for the patient to secure other medical attendance. It is for the physician to determine how often he should visit the patient; and where the patient accepts such attendance without objection or modification, the physician can collect on the ground that such services were necessary. But a physician and his employer may make such a contract as they think necessary, and the attendance may be limited.

Where there is no special contract between the physician and his employer, the physician may collect although a cure was not effected. The physician does not insure the success of his treatment unless expressly stipulated in the contract. But a physician may contract to effect a cure, in which case he can only collect for services rendered upon showing the fulfillment of the terms of the contract.

Where a third party contracts with a physician for medical services for another, it is usually held that the third party is not the agent of the patient and that he is under no legal obligation to pay for such services, except, of course, where there was legal obligation on his part.

to pay.

A husband is held liable for the services rendered his wife, though he may be considered a third party, and when the husband is absent the wife may employ a physician to be paid for by the husband. Where a husband places his wife in the care of a physician for treatment, the physician may proceed without further notice to the husband in adopting such course as in his (the physician's) judgment will be most effective toward her recovery. The wife may by express agreement pay for her own care, but even though she summons the physician she is not to be held responsible in the absence of express contract. A wife, however, cannot be held liable for medical attendance upon her husband unless distinct proof can be shown that she made the

contract.

The father is liable for attendance upon his minor child, but not upon a child who has reached his maturity although living under the same roof or sick at the father's house. The general rule is, that where a physician is requested by a party to render services to any member of his family the physician should look to him for compensation in the absence of notice that some one else is to be held responsible, and under this rule a child may be held responsible for medical services rendered an aged