467. Contracts by third persons generally.—With reference to contracts with physicians for medical services made by other persons than the patient, the general rule that, where a person requests the performance of a service and the request is complied with, the law raises an implied promise to pay the reasonable value of the services, has been adopted in some cases, holding that one who requests a physician to attend another person, without disclosing that he is acting only as an agent, becomes liable for the physician's services in accordance with such request.24 The prevailing rule, however, regards a third person calling a physician as a mere medium of intelligence that a physician is wanted, and holds that he is under no legal obligations to pay for the services rendered unless he expressly undertakes to pay for them,25 or unless it may fairly be inferred that it was the intention of both parties that he should pay for them,26 or unless his relation to the patient was such as to raise a legal obligation on his part to pay for the services.27 Under this rule, to hold one person for services rendered to another, they must have been rendered, not only at his instance and request, but also upon his credit.2 And the burden of

with a physician that, if he did not cure the patient, he was to receive no compensation, it is not necessary that a specific price should be agreed upon: a contract that, if a physician cured the patient he should be entitled to reasonable compensation, is valid and will be enforced. Mock v. Kelly, 3 Ala. 387.

"Foster v. Meeks, 18 Misc. 461, 41 N. Y. Supp. 950; Bradley v. Dodge, 45 How. Pr. 57; Hentig v. Kernke, 25 Kan. 559; Thomas v. Leavy, 62 Ill. App. 34; Grattop v. Rowheder, 1 Herdman (Neb.) 660, 95 N. W. 679.

25 Smith v. Watson, 14 Vt. 332; Clark v. Waterman, 7 Vt. 76, 29 Am. Dec. 150; Michigan College of Medicine v. Charlesworth, 54 Mich. 522, 20 N. W. 566; Smith v. Riddick, 50 N. C. (5 Jones, L.) 342; Guerard v. Jenkins, 1 Strobh. L. 171.

A statement by a third person to another with reference to an injured boy, directing him to go and get the doctor, and do all he could for the boy, and that he would see that the latter got his pay, furnishes evidence from which the jury, in an action against him for physician's services, would be justified in finding an original undertaking_to pay therefor. Boston v. Farr, 148 Pa. 220, 23 Atl. 901.

But proof that a physician upon hearing of a person's injury rendered med

28

ical assistance, and afterwards, upon being about to discontinue, a third person requested him to continue, and aft erwards, upon a bill being presented suowing a claim against him individually for the physician's services, he did not deny his responsibility, is not suf ficient to render the third person responsible for the physician's services. Curry v. Shelby, 90 Ala. 277, 7 So. 922. 26 Smith v. Watson, 14 Vt. 332.

Where, with the knowledge of a wom an, a physician had been sent for for another ill in her house, not directly by her, but without objection on her part, and when the physician came he was met by her husband, who forbade him rendering services on their account. an inference of a promise on their part to pay for his services is not warranted. Shaw v. Graves, 79 Me. 166, 8 Atl. 884.

"Meisenbach v. Southern Cooperage Co. 45 Mo. App. 232; Jesserich v. Walruff, 51 Mo. App. 270; Starrett v. Miley, 79 Ill. App. 658; Holmes v. McKim, 109 Iowa, 245, 80 N. W. 329; Crane v. Baudouine, 55 N. Y. 256; Boyd v. Sapping ton, 4 Watts, 247.

Northern C. R. Co. v. Prentiss, 11 Md. 119; Canney v. South Pacific Coast R. Co. 63 Cal. 501; Michigan College of Medicine v. Charlesworth, 54 Mich. 322, 20 N. W. 566.

Where a physician undertakes service upon the employment of the patient, he

A

showing that a contract for medical services with the patient had been discontinued, and that another had contracted for subsequent services, becoming responsible therefor, rests with him who asserts it.29 contract for medical services to be rendered to another is an original undertaking, which need not be in writing under the statute of frauds 30 and the burden of proof of relationship imposing a legal obligation to pay for medical services rests with the person asserting it;31 and the question as to whether medical services were rendered on the credit of the patient or another is one for a jury.32

468. Employment by husband or wife.-Since a husband is under legal obligation to care for his wife and furnish her with necessaries, an implied contract arises when he calls a physician to attend her, to pay therefor the reasonable value of his services.33 And a married woman may, in the absence of her husband, procure necessary medicine, and medical aid, and advice for herself, for which her husband would be liable as for necessaries.34 And where a husband places his wife in the care of a physician for medical or surgical treatment, he impliedly requests him to adopt such course of treatment and operation as, in his judgment, will be most liable to effect her ultimate recovery;35 and the physician may proceed without further notice to

cannot afterwards hold the patient's father liable therefor, on oral expressions of interest in the case, or oral guaranties of the son's solvency. Edelman v. McDonell, 126 Cal. 210, 58 Pac.

528.

*Curry v. Shelby, 90 Ala. 277, 7 So. 922.

King v. Edmiston, 88 Ill. 257. But where a physician attends a patient, and after several visits a son-inlaw offers to become responsible for his services, his undertaking refers to subsequent visits only. Starrett v. Miley, 79 Ill. App. 658; King v. Edmiston, 88 III. 257.

Neilson v. Ray, 44 N. Y. S. R. 125, 17 N. Y. Supp. 500.

"Northern C. R. Co. v. Prentiss, 11 Md. 119.

And where a physician examines a patient, and decides that a surgical operation for an internal trouble is necessary, and agrees to perform it for a stated sum, and afterwards upon further examination decides and states that the first diagnosis was erroneous, and that the operation suggested is not necessary, but a more serious one is required which will jeopardize life, VOL. III. MED. JUR.-29.

after which, with the consent of his employer, he performs the operation,-it is a question for the jury whether or not the original agreement based upon the first examination was superseded. MacEvitt v. Maass, 64 App. Div. 382, 72 N. Y. Supp. 158.

33 Meisenbach v. Southern Cooperage Co. 45 Mo. App. 232; Moody v. Osgood, 50 Barb. 628; Re Smith, 18 Misc. 139, 41 N. Y. Supp. 1093.

Wood v. O'Kelley, 8 Cush. 406.

And an agreement upon the part of a husband living separate from his wife to pay her a certain sum per month for her support does not relieve him from liability for medical services afterwards rendered to the wife, where the physician rendering them had no knowledge of such agreement. Lawrence v. Brown, 91 Iowa, 342, 59 N. W. 256.

But he would not be liable for medicines furnished by one who did not profess to be a physician, or to have medical skill or knowledge of diseases and their remedies, but who practised through clairvoyance or mesmerism. Wood v. O'Kelley, 8 Cush. 406.

35 M'Clallen v. Adams, 19 Pick. 333, 31 Am. Dec. 140.

the husband.36 Even though the wife herself sends or applies for the services of the physician, the inference is that she acted as agent for her husband, and he, and not she or her estate, is liable for services rendered;37 though the wife may, by express agreement, charge her separate estate.38 And though parties living together are not husband and wife, where the man employs a physician for the woman, representing her to be his wife, he is liable to the physician for the services rendered.39 And the liability of a husband once incurred continues until the wife is cured, though she is removed from the husband's house, where he does not expressly repudiate responsibility;40 though a wife cannot abandon her husband's house, and bind him by contracts for medical attendance, except upon clear and satisfactory proof of gross abuse, neglect, and misconduct on his part.1 A wife, however, is not liable to a physician for medical attendance upon her husband, where she did not employ him, or in any way suggest or request that he attend her husband.42

469. Employment by head of family.-Where a father calls a physician to attend his minor child, the law implies a promise on his part to pay the reasonable value of the services, because there is a legal obligation to furnish necessaries for the patient's benefit. But the

36 Ibid.

37 Ellison v. Sessions, 44 N. Y. S. R. 644, 18 N. Y. Supp. 108; Re Weringer, 100 Cal. 345, 34 Pac. 825.

Where a married woman consents to an operation, physicians are justified in performing it if, after consultation, they deem it necessary for the preservation and prolongation of her life, without reference to the consent or want of consent of her husband. State use of Janney v. Housekeeper, 70 Md. 162, 2 L. R. A. 587, 14 Am. St. Rep. 340, Atl. 382.

16

28 Ellison v. Sessions, 44 N. Y. S. R. 644, 18 N. Y. Supp. 108; Re Smith, 18 Misc. 139, 41 N. Y. Supp. 1093.

An express promise upon the part of a wife to pay for medical services rendered to her cannot be inferred from the fact that such services were rendered upon her request. Re Smith, 18 Misc. 139. 41 N. Y. Supp. 1093.

But testimony of a physician in an action by him against a married woman for professional services, that she herself agreed to be responsible for them, and that of the defendant, that she made no such promise or contract, creates a conflict which should be submitted to the jury; and it is error in

43

such a case to direct a finding in favor of the defendant. Trentham v. Waldrop, 119 Ga. 152, 45 S. E. 988.

"Gerlach v. Turner, 89 Cal. 446, 26 Pac. 870.

And he is liable for services rendered to her after the physician is informed that she is not his wife, where he does not then plainly and unequivocally put an end to the employment. Ibid.

40 Potter v. Virgil, 67 Barb. 578; Downing v. O'Brien, 67 Barb. 583. "Potter v. Virgil, 67 Barb. 578. "Callahan v. O'Rourke, 17 App. Div. 277, 45 N. Y. Supp. 764.

The rendition of a physician's bill to a woman for medical services to her husband, and her payment of a part thereof, and a proposal to settle the rest, do not establish an account stated between the parties, rendering her liable for the balance. Ibid.

Meisenbach v. Southern Cooperage Co. 45 Mo. App. 232; McMillen v. Lee, 78 Ill. 443.

A father is liable to a physician for medical services rendered to his minor son at his house and with his knowledg and assent, as on an implied promis without proof of an express promise: though the son had previously left the

general rule that no contract is implied where one person requests a physician to perform services for another, unless his relation to the patient is such as to raise a legal obligation on his part to call for and pay the physician, prevents a father from being liable for requesting the attendance of a physician upon a child of full age, for whom he was not bound to provide, though such child may have been sick at his house."4 And the same rule applies to a contract with a physician for medical services to be rendered to a parent of the contracting party, 15 or to be rendered to a minor living in his family and supported by him, but not otherwise related to him ;46 though the assumption of the parental relation to a minor carries with it the obligation to care for his or her health.47 And the promise of a person not bound to furnish medical attendance, to pay for services previously rendered to a member of his family, but not on his credit, is a naked agreement to pay the debt of another, upon which no legal obligation can be predicated.48 Nor is a person liable for medical services to be rendered to another, in the absence of express contract, because he was

house of his father, against his father's will, and refused to return on his request, but returned upon being taken sick. Deane v. Annis, 14 Me. 26.

And evidence that a man paid for music lessons given to a girl, and that she called him "papa," and that he had previously paid the plaintiff for similar services rendered to the girl, is sufficient to establish the fact that he was the girl's father, and that he was legally liable for medical services rendered to her by the plaintiff. Neilson v. Ray, 44 N. Y. 8. R. 125, 17 N. Y. Supp. 500.

"Crane v. Baudouine, 55 N. Y. 256; Boyd v. Sappington, 4 Watts, 247; Kankin v. Beale, 68 Mo. App. 325.

And the ability of an adult patient to pay a physician's bill for services is admissible in behalf of the defendant in an action by the physician against the patient's father, in whose house he was sick, to recover for his services to the son. Boyd v. Sappington, 4 Watts,

247.

Smith v. Hyde, 19 Vt. 54. The fact that a son-in-law was at the deathbed of his mother-in-law, rendering such services as he could, and that he knew the physicians who were attending her, and said nothing, is not alone sufficient to render him liable for their services, especially where the estate left by the patient was amply sufficient to pay such charges. Madden v. Blain, 66 Ga. 49.

Holmes v. McKim, 109 Iowa, 245, 80 N. W. 329.

And such a person is not rendered liable for the physician's services by the fact that he acquiesced in the attendance, and had, on former occasions, paid the same doctor for attending the same person, the doctor being familiar with all the circumstances. Ibid.

"Neilson v. Ray, 44 N. Y. S. R. 125, 17 N. Y. Supp. 500.

A partial emancipation of a daughter fourteen years of age, by permitting her for three years thereafter to reside thirty miles away, and control and use her own wages, without furnishing her with any money or means of support, does not exempt her father from liability for necessary services of a physician employed by her in sickness, where it does not appear that he intended to waive the right to exercise parental authority over her. Porter v. Powell, 79 Iowa, 151, 7 L. R. A. 176, 18 Am. St. Rep. 353, 44 N. W. 295.

Chappell v. Barkley, 90 Mich. 35, 51 N. W. 351; Edelman v. McDonell, 126 Cal. 210, 58 Pac. 528.

A direction by a stepfather to perform medical services for a stepson, and an agreement to pay therefor, if not an original undertaking, would fall within the statute of frauds, and no recovery could be had thereon unless in writing. Boston v. Farr, 148 Pa. 220, 23 Atl. 901.

bound by bond to support the latter.49 The rule has been laid down, however, that if a physician is called by a person to render services to any member of his family, the physician has a right to look to him for compensation, in the absence of notice that someone else is responsible.50 And, under this rule, while a child may be under no obligation to support an aged parent, or receive him into his family, if he does receive the parent into his family, he is prima facie responsible for medical services called for by him for the benefit of the parent.51 470. Employment for servant or apprentice.-A master or employer is liable for the medical attendance which he procures for his servant or employee for which he agrees to pay.52 The fact that an employee is disabled in his employment is a sufficient consideration to support a promise by the employer to pay for the nursing and medical attendance necessary to his cure." And a master is bound to pay for medical attendance on an apprentice, from the very nature of the relation

53

"Shaw v. Graves, 79 Me. 166, 8 Atl. 884.

But a promise by a person to pay for medical attendance upon persons to whom he had given his bond for support is a promise to pay his own debt, and is not within the statute of frauds. Rounsevel v. Osgood, 68 N. H. 418, 44

Atl. 535.

50 Hentig v. Kernke, 25 Kan. 559; Grattop v. Rowheder, 1 Herdman (Neb.) 660, 95 N. W. 679; Clark v. Waterman, 7 Vt. 76, 29 Am. Dec. 150. And see Foster v. Meeks, 18 Misc. 461, 41 N. Y. Supp. 950.

In Grattop v. Rowheder, 1 Herdman (Neb.) 660, 95 N. W. 679, it was held that a lady about seventy years of age who lived in a family for nine years, performing such services as she was able, and receiving the necessaries of life therefor, is a member of the family within the meaning of this rule.

"Hentig v. Kernke, 25 Kan. 559.

Clark v. Waterman, 7 Vt. 76, 29 Am. Dec. 150; Fraser V. San Francisco Bridge Co. 103 Cal. 79, 36 Pac. 1037.

The employment by a corporation of a physician to treat a person injured in connection with its business will be presumed to be within its powers in the absence of evidence to the contrary. Deane v. Gray Bros. Artificial Stone Paving Co. 109 Cal. 433, 42 Pac. 443.

And a surgeon may hold a partnership liable for professional services rendered to an employee of a member of the firm, injured while engaged in the separate business of his employer, upon the re

quest of all the partners. Till Bros. v. Redus, 79 Miss. 125, 29 So. 822.

And where several railroad companies, owning and operating several roads, enter into a voluntary association, and form a hospital and relief department, which is operated in connection with the business of each company, employees of each being required to be members of such department, and to contribute regularly sums deducted from their wages, one of such companies is responsible for the compensation of a physician employed by its employees in pursuance of regulations of the department to treat another employee injured by an explosion in its shops. Florida Southern R. Co. v. Steen (Fla.) 34 So. 571.

Toledo, W. & W. R. Co. v. Rodrigues, 47 Ill. 188, 95 Am. Dec. 484; Fraser v. San Francisco Bridge Co. 103 Cal. 79, 36 Pac. 1037.

But a contract by a physician with a railroad company to render professional services to employees of the company, or to those to whom the company is liable for personal injuries, does not bind him to render such services to persons injured while trespassing on the property of the company. Westmoreland County v. Donnelly (Pa.) 5 Cent. Rep. 269, 7 Atl. 204.

And a company agreeing to pay for medical services rendered to a foreman in its employ has a right to make a contract by which it is to determine what shall be a reasonable charge for such services. Fraser v. San Francisco Bridge Co. 103 Cal. 79, 36 Pac. 1037.