491. Presumption and burden of proof.-The prevailing rule would seem to be that physicians, surgeons, etc., performing services as such, and seeking compensation therefor, are presumed to be duly qualified, in the absence of any showing to the contrary; and the burden rests with the defendant, in an action for such services, to show lack of qualification;95 noncompliance with statutory requirements being a matter of defense.96 And the burden also rests with the defendant to show fraud, or that reasonable and ordinary care and skill have not been used.97 The contrary rule has been laid down, however, that the burden of showing compliance with the law and taking out a license, rests with a physician seeking to recover compensation,98 though under this rule slight evidence of the right to practise is sufficient as against a person who called upon the physician for his services."* And a physician is entitled to recover compensation for his services as such, upon evidence that he is a practising physician, and a graduate of an incorporated school of medicine; since it may be inferred therefrom that he has received a diploma as required by law.100

492. Competency and sufficiency of evidence.-The usual rules as to competency, admissibility, and sufficiency of evidence, seem to apply

tion for such services alleging a special contract, for the purpose of disproving it. Ibid.

"Robinson v. Campbell, 47 Iowa, 625; Lacy v. Kossuth County, 106 Iowa, 16, 75 N. W. 689; Jo Daviess County v. Staples, 108 Ill. App. 539; Good v. Lasher, 99 Ill. App. 653; Dickerson v. Gordy, 5 Rob. (La.) 489; Lyford v. Martin, 79 Minn. 243, 82 N. W. 479; Cather v. Damerell (Neb.) 99 N. W. 35; McPherson v. Cheadell, 24 Wend. 15; Thompson v. Sayre, 1 Denio, 175; Crane v. McLaw, 12 Rich. L. 129; Gremare v. Le Clerc Bois Valon, 2 Campb. 144; Simpson v. Ralfe, 4 Tyrw. 325.

And after proof that a physician has been regularly licensed, in an action for compensation for his services as such, the burden rests with the defendant to show that the license has not been registered, where the statute requires registry to entitle the physician to a recovery. Accetta v. Zupa, 54 App. Div. 33, 66 N. Y. Supp. 303.

And under a statutory provision that in such an action the physician need not produce his license or authority to prac tise, unless he was notified by the defendant that such proof would be required, the notice should be to produce his license or authority upon the trial

of the cause; and a notice requiring him to show cause for practising medicine and charging for services, and that authority for so doing would be demanded, is insufficient. Jordan v. Brewin, 19 Ala. 238.

"Lyford v. Martin, 79 Minn. 243, 82 N. W. 479.

"Styles v. Tyler, 64 Conn. 432, 30 Atl. 165; Bellinger v. Craigue, 31 Barb. 534.

"Cooper v. Griffin, 13 Ind. App. 212, 40 N. E. 710; Adams v. Stewart, 5 Harr. (Del.) 144; Conkey v. Carpenter, 106 Mich. 1, 63 N. W. 990; Dow v. Haley, 30 N. J. L. 354; North Chicago Street R. Co. v. Cotton, 140 Ill. 486, 29 N. E. 899.

This rule is put upon the ground that the education and experience of a physician are peculiarly within his own knowledge, in Conkey v. Carpenter, 106 Mich. 1, 63 N. W. 990.

"Chicago & A. R. Co. v. Smith, 21 Ill. App. 202.

As between third parties, the fact that a physician has for a long time been practising as such is sufficient to show prima facie that he is lawfully authorized to do so. North Chicago Street R. Co. v. Cotton, 140 Ill. 486, 29 N. E. 899.

100 Rider v. Ashland County, 87 Wis. 160, 58 N. W. 236.

to actions for compensation for medical services.1 In the absence of statutory regulation as to the right to practise, the qualifications of a physician are sufficiently shown in a suit for services by proof of his admission to practise on graduation from some reputable college, or on a proper amount of study, skill, and experience. And books of original entries of a physician are admissible, though not conclusive evidence as to the value of the services therein charged3 and the number of visits made. But in order to authorize a verdict in his favor upon his medical account, he must prove by persons who had dealings with him that he was in the habit of keeping correct books. And the charges must be specific, and not loose and general. And a rea

sonable doubt or disbelief of the qualifications of a physician, induced in the minds of the jury in an action for services by the nature of the entries in his books, will justify a reduction or rejection of the charge.7

Nor are the testimony or declarations of a physician in an action for services rendered a decedent during his lifetime incompetent as relating to a transaction with, or statement of, a deceased person.8 And the nature of a patient's trouble, and the character of the treatment given, are competent on the question of the value of the services rendered. And other medical men may give their opinions based on knowledge of the facts as to the value of a physician's services.10 And where the action is on a quantum meruit, and there is no conflict in the evidence of the experts as to the reasonable value of the services of a physician, the jury cannot disregard it and act on their own judgment. But courts are not bound by the opinions of medical witnesses as to the value of medical services.12 And the exclusion of such opinions is not error, where those referred to were of a different character from those sought to be recovered for.18 The general character of a physician, as such, however, is not admissible in evidence in

action for services is not insufficient because it does not state the exact price charged for each and every visit or service. Van Bibber v. Merrit, 12 W. N. C. 272.

Whether or not medical accounts are too general to enable the defendant to investigate their propriety or reasonableness is a question resting largely in the discretion of the trial court. Schmidt v. Quin, 1 Mill, Const. 418.

'Langolf v. Pfromer, 2 Phila. 17. Likewise, an objection to the book of registration of physicians, that it was not official, must be specific; an objection that it was incompetent, immate rial, and irrelevant, is insufficient. Accetta v. Zupa, 54 App. Div. 33, 66 N. Y. Supp. 303.

Corbus v. Leonhardt, 51 C. C. A. 636, 114 Fed. 10; McDonald v. Harris, 131 Ala. 359, 31 So. 548.

Kendall v. Grey, Hilt. 300.

cago v. Wood, 24 Ill. App. 40; Kwiecinski v. Newman (Mich.) 100 N. W. 391.

But a nonmedical witness cannot give his opinion as to the value of medical services rendered, though he had previously heard a medical expert express his opinion on that subject. Mock v. Kelly, 3 Ala. 387.

"Ladd v. Witte, 116 Wis. 35, 92 N. W. 365; McKnight v. Detroit & M. R. Co. 10 Det. L. N. 777, 97 N. W. 772; Wood v. Barker, 49 Mich. 295, 13 N. W. 597.

There is no presumption of law concerning the value of a surgeon's services, and none that a jury can ascertain it without testimony of some kind from persons knowing something about such value. Wood v. Barker, 49 Mich. 295, 13 N. W. 597.

12Re Smith, 18 Misc. 139, 41 N. Y. Supp. 1093.

13 Trenor v. Central P. R. Co. 50 Cal. 222.

And the reasonableness of the charge of a physician cannot be established by proof of what the same physician had charged another person in a similar case. Collins v. Fowler, 4 Ala. 647.

10 MacEvitt v. Maass, 64 App. Div. 382, 72 N. Y. Supp. 158; Ward v. Ohio River & C. R. Co. 53 S. C. 10, 30 S. E. 594. And see Mock v. Kelly, 3 Ala. 387. And the evidence of a physician, who attended a person suffering a personal And evidence of a surgeon, employed injury, as to the value of his services, by a railroad company to attend to peris competent and admissible in an ac- sons injured in an accident, as to what tion for damages for the injury. Chi- he received for his services, is inadmis

such an action,14 and that others were treated at the same time and place is immaterial on the question of the value of a physician's services, 15

CHAPTER XVIII.

OFFICIAL EMPLOYMENT AND DUTIES OF PHYSICIANS AND SURGEONS.

493. In prisons and jails.

494. For the indigent poor.

495. Municipal employment in case of epidemic.

496. In coroners' inquests and post-mortem examinations.

497. In reporting dangerous diseases and conditions.

498. In examining and certifying as to mental or physical condition.

493. In prisons and jails.—It is the universal practice of the state governments in the exercise of their police power to supply proper medical attendance to persons confined in prisons; and it is the duty of the board of commissioners, or other legislative body of a county, to furnish all needful medical aid and attendance to persons confined in the jails of the county.' And a physician may be employed either by the single visit from time to time or by the year. And the county is liable to a physician thus employed for proper compensation for services rendered under the contract of employment.

494. For the indigent poor.-It is the duty of the board of commissioners, or other legislative body of a county, to furnish all needful medical attendance to such poor persons as are a county charge. And authority upon the part of a municipality to provide for the indigent authorizes its council to elect or appoint a physician to render such medical services." Medical attendance under an appointment of a

'Rider v. Ashland County, 87 Wis. 160, 58 N. W. 236.

'Ibid.

'Ibid.

And where a physician of a penitentiary can only be removed by inspectors, and the lessee of the penitentiary was required to pay the physician a stipulated amount at stated times, he cannot avoid his liability by refusing to admit him to the hospital of the penitentiary; and the physician has a right to recover notwithstanding the fact that the lessee had prevented him from discharging his official duties. Jones v. Graham, 21 Ala. 654.

"Tucker v. Virginia, 4 Nev. 20.

A municipal corporation authorized to elect a city physician, establish a city infirmary, provide for the indigent, and make all necessary contracts and agreements for the benefit of the city, has power to contract for the care and maintenance of the indigent sick at a private hospital, where it has no infirmary. Ibid.

And under statutory provision authorizing township trustees to provide medical relief for poor persons in their respective townships, to be paid for by order of the board of supervisors, such trustees have authority to provide relief for poor persons who, in their judg ment, should not be sent to the poor

'Rider v. Ashland County, 87 Wis. 160, 58 N. W. 236.