dence material to the issues in a pending case, devolving upon him as a citizen in view of the protection which he receives from the law of the country in the matter of his personal liberty and the protection of his property, devolves upon the physician or surgeon who is required to testify as an expert, as well as upon the ordinary witness testifying to facts within his knowledge.76 Within this rule an expert witness, called upon to answer a hypothetical question involving a special knowledge peculiar to his calling, is merely required to do what every good citizen is required to do in behalf of public peace and good order, and the promotion of the public good." And a medical witness cannot decline to testify upon the ground that his knowledge was obtained by professional skill, and from the deductions of experience which are his own property, and for which the county refuses to pay.78 This rule is alike applicable whether the action is criminal or civil;79 and a physician is punishable under it as for contempt, for refusing to testify as an expert without being paid for his testimony as for a professional opinion.80 And the court cannot, in the absence of statutory authority, bind the county by allowing compensation in excess of the statutory fees of ordinary witnesses. 81

581. Rule allowing additional pay for opinion.-The rule adopted in Indiana and some of the other jurisdictions is that the skill and professional experience of a physician or surgeon are so far his individual capital and property that he cannot be compelled to confer them gratuitously upon anyone; and that neither the public nor any private person has a right to extort services from him in the line of his profession without adequate compensation; and that he cannot be compelled to give a professional opinion as a witness, without compensation in addition to the ordinary fees of witnesses.82 Within this

"Dixon v. People, 168 Ill. 179, 39 L. R. A. 116, 48 N. E. 108; Ex parte Dement, 53 Ala. 389, 25 Am. Rep. 611; Flinn v. Prairie County, 60 Ark. 204, 27 L. R. A. 669, 46 Am. St. Rep. 168, 29 S. W. 459; Clark County v. Kerstan, 60 Ark. 508, 30 S. W. 1046; Larimer County v. Lee, 3 Colo. App. 177, 32 Pac. 841; Gaston v. Marion County, 3 Ind. 497; Allegheny County v. Watts, 3 Pa. St. 462; Summers v. State, 5 Tex. App. 374, 32 Am. Rep. 573.

"Dixon v. People, 168 Fll. 179, 39 L. R. A. 116, 48 N. E. 108.

78 Summers v. State, 5 Tex. App. 367, 32 Am. Rep. 573; State v. Teipner, 36 Minn. 535, 32 N. W. 678.

The property of an expert witness is not taken without just compensation by requiring him to give his opinion as an

expert without other compensation than ordinary witness fees. Dixon v. People, 168 Ill. 179, 39 L. R. A. 116, 48 N. E. 108.

TOIbid.

Ex parte Dement, 53 Ala. 389, 25 Am. Rep. 611; Dixon v. People, 168 III. 179, 39 L. R. A. 116, 48 N. E. 108; Com. v. Higgins, 5 Kulp, 269.

81 Larimer County v. Lee, 3 Colo. App. 177, 32 Pac. 841.

So, a medical witness has no right to recover on the quantum meruit for services rendered as such under the requirements of the law for such services; he is limited to the fee for compensation fixed by statute. Smith v. McLaughlin, 77 Ill. 596.

$2 Buchman v. State, 59 Ind. 1, 26 Am. Rep. 75; Dills v. State, 59 Ind. 15;

rule, though a physician called as a witness is bound as a matter of public duty to speak as to facts which he saw or knew, where he is called upon to depose to a matter of opinion depending upon his skill, he is under no such obligation, and has a right, before being summoned, to demand from the party calling him compensation for his loss of time.83 And he cannot be punished as for contempt of court for refusal to testify as an expert unless he is first compensated;84 and there is sufficient consideration to support a contract to pay an expert witness a reasonable compensation in addition to the statutory fees, where he was engaged in advance of the trial to testify as such.85

At common law additional compensation was given to physicians and attorneys by way of an allowance for loss of time while serving as scientific witnesses, regard being had to the distance traveled, and the average rate of fees earned by them.86 And the table of fees framed by the common-law judges under 15 & 16 Vict. chap. 76, allowed different sums to different witnesses according to their vocation and station in life.87 And in the English courts of chancery the practice has been to allow the expenses of procuring expert and scien

United States v. Howe, 12 Cent. L. J. 193.

And a physician called upon to make a post-mortem examination is entitled to compensation in addition to that paid ordinary witnesses, for the expenditure of labor and skill required in the examination. Gaston v. Marion County,

3 Ind. 497.

83 Webb v. Page, 1 Car. & K. 23; United States v. Howe, 12 Cent. L. J. 193; Dills v. State, 59 Ind. 15.

A physician or surgeon when giving his opinion in the court does not occupy the position of a witness testifying to facts, and is not embraced within the term "witness" as used in § 13 of the Indiana Bill of Rights, providing that in all criminal prosecutions the accused shall have the right to compulsory process for obtaining witnesses in his favor. Buchman v. State, 59 Ind. 1, 26 Am. Rep. 75.

United States v. Howe, 12 Cent. L. J. 193; Buchman v. State, 59 Ind. 1, 26 Am. Rep. 75; Dills v. State, 59 Ind. 15. Barrus v. Phaneuf, 166 Mass. 123, 32 L. R. A. 619, 44 N. E. 141.

And an expert witness does not waive his right to extra compensation to which he is entitled by contract, by subsequently receiving statutory fees as a witness from the party who engaged him, and by testifying without making any claim for extra compensation, even

though he is not asked questions which call for his opinion as an expert. Ibid.

But an agreement by which a person qualified to testify as an expert is to be paid a stipulated sum for giving his testimony, on condition that it enables the other contracting party to win the suit, besides his traveling expenses and the usual per diem allowance of an expert, is illegal and wholly void; and the expert cannot recover even his traveling expenses and fees. Pollak v. Gregory, 9 Bosw. 116.

See Severn v. Olive, 3 Brod. & B. 72, 6 J. B. Moore, 235, 23 Revised Rep. 365; Lowry v. Doubleday, 5 Maule & S. 159 note; Moore v. Adam, 5 Maule & S. 156; Lopes v. DeTastet, 7 J. B. Moore, 120, 3 Brod. & B. 292; Clark v. Gill, 1 Kay & J. 19, 23 L. J. Ch. N. S. 711, 2 Week. Rep. 652, 2 Eq. Rep. 1108; Parkinson v. Atkinson, 31 L. J. C. P. N. S. 199.

But a surgeon could only be allowed the usual fees for attending at the trial of an indictment for manslaughter, and not his fees for opening the body by order of the coroner. Rex v. Taylor, 5 Car. & P. 301.

ST Nokes v. Gibbon, 26 L. J. Ch. N. S. 208. 3 Jur. N. S. 282, 5 Week. Rep. 216. And see Clark v. Gill, 1 Kay & J. 19, 23 L. J. Ch. N. S. 711, 2 Week. Rep. 652, 2 Eq. Rep. 1108.

tific witnesses, and qualifying them to give evidence, in taxing costs as between party and party;88 the amount of the allowance resting in the discretion of the master.89 And the statutes of a number of the states provide for the allowance of extra compensation to expert witnesses, the amount to be determined by the court. 90 But these statutes apply only when the witness is called upon as a professional person for the purpose of testifying to an opinion founded on special study and experience.91 And under them a witness cannot refuse to answer on the ground that his answer will constitute expert evidence, since they contemplate allowance afterwards made;92 and the liability therefor seems to rest entirely with the party calling the witness; it is not taxable as costs.93 The district or prosecuting attorney is authorized in some of the states to require the attendance of skilled witnesses in criminal actions, in proper cases, for a special compensation, and to bind the county by agreement therefor, the test of the

88

68 Mackley v. Chillingworth, 46 L. J. C. P. N. S. 484, L. R. 2 C. P. Div. 273, 36 L. T. N. S. 514, 25 Week. Rep. 650; May v. Selby, 4 Mann. & G. 142, 4 Scott, N. R. 727, 1 Dowl. N. S. 708, 6 Jur. 52, 11 L. J. C. P. N. S. 223.

Mackley v. Chillingworth, 46 L. J. C. P. N. S. 484, L. R. 2 C. P. Div. 273, 36 L. T. N. S. 514, 25 Week. Rep. 650; Turnbull v. Janson, L. R. 3 C. P. Div. 264, 47 L. J. C. P. N. S. 384, 26 Week. Rep. 815.

See Snyder v. Iowa City, 40 Iowa, 646; State ex rel. Dardenne v. Cole, 33 La. Ann. 1356; LeMere v. McHale, 30 Minn. 410, 15 N. W. 682; State v. Dollar, 66 N. C. 626.

In Minnesota the discretion of the court will not be revised on appeal, unless in case of gross abuse. LeMere v. McHale, 30 Minn. 410, 15 N. W. 682.

And the compensation of witnesses in a criminal case who testified as experts may be fixed by the trial judge in an Ex parte proceeding under Louisiana statute. State ex rel. Dardenne v. Cole, 33 La. Ann. 1356.

So, an allowance may be made for a reasonable number of expert witnesses as to the extent of gold deposits, upon a proceeding to condemn gold, brought by the United States, under a statute providing that the attendance fees of witnesses should be paid by the United States as an expense incident to the condemnation. United States ex rel. Rock Creek Park v. Cooper, 21 D. C. 491, 21 Wash. L. Rep. 182.

Snyder v. Iowa City, 40 Iowa, 646; Le Mere v. McHale, 30 Minn. 410, 15 N. W. 682.

State v. Teipner, 36 Minn. 535, 32 N. W. 678.

9 See The William Branfoot, 3 C. C. A. 155, 8 U. S. App. 129, 52 Fed. 390; Faulkner v. Hendy, 79 Cal. 265, 21 Pac. 754; Mark v. Buffalo, 87 N. Y. 184.

"People v. Montgomery, 13 Abb. Pr. N. S. 207; People ex rel. Bliss v. Cortland County, 39 N. Y. S. R. 313, 15 N. Y. Supp. 748. And see State ex rel. Dardenne v. Cole, 33 La. Ann. 1356.

And the amount paid a physician called as an expert witness in such case, and the fact that the amount of compensation was not known to the defendant, could not, in the absence of anything to show bad faith, affect the regularity of the trial of a criminal case, though it might affect the credit of the witness with the jury. People v. Montgomery, 13 Abb. Pr. N. S. 207.

But a medical expert who attends a criminal trial, and testifies on behalf of the defendant, is not entitled to an allowance of additional compensation, under a statute providing that a prisoner is entitled to process to summon necessary witnesses at the expense of the commonwealth; and the expenses and fees of expert witnesses cannot be allowed without the approval of the attorney general, under one authorizing the allowance of accounts for services and expenses incident thereto, or one providing for the taxation of certain specific fees, including fees of witnesses; but a court may allow a reasonable compensation, approved by the attorney general, to experts. Atty. Gen. Petitioner, 104 Mass. 537.

right being the necessity of the case;95 and payment may be compelled by mandamus.96

*People ex rel. Bliss v. Cortland County, 39 N. Y. S. R. 313, 15 N. Y. Supp. 748.

"State er rel. Dardenne v. Cole, 33 La. Ann. 1356.

CHAPTER XXVIII.

INJURIES TO PHYSICIANS OR SURGEONS.

582. Personal or physical injuries.

583. Defamation by charge of general incompetency. 584. Defamation by charge of error in particular case. 585. Effect of failure to obtain license.

1

582. Personal or physical injuries.-The rules of law with reference to injuries to physicians or surgeons and to liability therefor are the same as those with relation to other persons in general, except as to injuries affecting either a physician's professional income or professional character. With reference to personal or physical injuries affecting a physician's professional income, his professional earnings do not form a basis of damages. But the amount of the previous professional earnings of a physician is admissible in evidence, under an allegation of special damages, to aid in estimating the value of the time lost by him.2 And the possibility of the recurrence of special emoluments in the shape of gifts received from patients by eminent physicians should be considered in making the estimate. And the fact that the party causing the injury did not know that the party injured was a physician with a large income is of no effect. Nor is a person suffering a personal injury precluded from recovering damages for the loss of business as a physician by the fact that he had no such degree from a medical institution as would enable him to maintain an action for professional services. It has been held, however,

5

'Logansport v. Justice, 74 Ind. 378, 39 each other. St. Louis 8. W. R. Co. v. Am. Rep. 79. Ball, 28 Tex. Civ. App. 287, 66 S. W. 879.

Ibid.; Collins v. Dodge, 37 Minn. 503, 35 N. W. 368; Nebraska City v. Campbell, 2 Black, 590, 17 L. ed. 271.

'Phillips v. London & S. W. R. Co. L. R. 5 C. P. Div. 280, 42 L. T. N. S. 6, 44 J. P. 217, 49 L. J. C. P. N. S. 233. "Ibid.

"Holmes v. Halde, 74 Me. 28, 43 Am. Rep. 567; McNamara v. Clintonville, 62 Wis. 207, 51 Am. Ren. 722, 22 N. W. 472; Luck v. Ripon, 52 Wis. 196. 8 N. W. 815. Contra, Jacques v. Bridgeport Horse R. Co. 41 Conn. 61, 19 Am. Rep.

But it is improper in an action for personal injuries to a physician, on the question of damages suffered by him in his business, to permit another physician practising in another locality to testify as to what proportion of his practice was obstetrical cases, where there is no testimony to show the relative density of population of the two 483. localities, or how they compared with