interfere and extinguish it, and which they refused to do. The plea set up by the defendant for the refusal is so absurd as to be unworthy of notice, any further than to stamp it as unworthy of civilized and Christian men. They had no right," forsooth, " to enter upon the premises for such a purpose." Has it come to this, that citizens of this community are not permitted to enter the premises of another, whose house or barn is on fire, to extinguish the flames? Would not savages, prompted by their own instincts, rush to the rescue of property so endangered? . ... 619. PROCTOR v. ADAMS SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1873 113 Mass. 376 TORT, in the nature of trespass quare clausum, for entering the plaintiff's close and carrying away a boat. At the trial in the Superior Court, before BRIGHAM, C. J., it appeared that the premises described in the declaration were a sandy beach on the sea side of Plum Island, and that the defendants went there, between high and low water mark, January 19, 1873, and against the objection and remonstrances of the plaintiff's tenant, carried away a boat worth $50, which they found lying there. ... The defendants requested the Court to rule that, upon the case presented, the law would imply a license, but the Court declined so to rule. The defendants then declined to go to the jury, and the Court instructed the jury to return a verdict for the plaintiff for $51, and reported the case to this Court. E. F. Stone, for the defendants. ... GRAY, C. J. The boat, having been cast ashore by the sea, was a wreck, in the strictest legal sense. 3 Bl. Com. 106. . . . If, as the evidence offered by them [the defendants] tended to show, the boat was in danger of being carried off by the sea, and they, before the plaintiff had taken possession of it, removed it for the purpose of saving it and restoring it to its lawful owner, they were not trespassers. In such a case, though they had no permission from the plaintiff or any other person, they had an implied license by law to enter on the beach to save the property. It is a very ancient rule of the common law, that an entry upon land to save goods which are in jeopardy of being lost or destroyed by water, fire, or any like danger, is not a trespass. 21 H. VII, 27, 28, pl. 5; Bro. Ab. Trespass, 213; Vin. Ab. Trespass (H. a. 4), pl. 24 ad fin.; (K. a.) pl. 3. The defendants are therefore entitled to a new trial. New trial ordered. 95 Minn. 261, 104 N. W. 112, 108 N. W. 818 ACTION in the District Court for Ramsey County to recover $20,000 damages for assault and battery consisting of an alleged unauthorized surgical operation performed by defendant upon plaintiff's ear. The case was tried before OLIN B. LEWIS, J., and a jury, which rendered a verdict in favor of plaintiff for $14,322.50. From separate orders granting a motion for a new trial and denying a motion for judgment, notwithstanding the verdict, plaintiff and defendant respectively appealed. Orders affirmed. H. A. Loughran and S. C. Olmstead, for plaintiff. . . . Consent of plaintiff to the operation was necessary. ... Keith, Evans, Thompson & Fairchild and John D. O'Brien, for defendant. Independently of consent, the physician who, under such circumstances as exist in this case, performs successfully an operation which is the best thing to do to arrest disease and save life, should be held fully justified in what he has done, and bound to have taken the course he has followed. Pollock, Torts, 146. . . . ... BROWN, J. Defendant is a physician and surgeon of standing and character, making disorders of the ear a specialty, and having an extensive practice in the city of St. Paul. He was consulted by plaintiff, who complained to him of trouble with her right ear, and, at her request, made an examination of that organ for the purpose of ascertaining its condition. He also at the same time examined her left ear, but, owing to foreign substances therein, was unable to make a full and complete diagnosis at that time. The examination of her right ear disclosed a large perforation in the lower portion of the drum membrane, and a large polyp in the middle ear, which indicated that some of the small bones of the middle ear (ossicles) were probably 'diseased. He informed plaintiff of the result of his examination, and advised an operation for the purpose of removing the polyp and diseased ossicles. After consultation with her family physician and one or two further consultations with defendant, plaintiff decided to submit to the proposed operation. She was not informed that her left ear was in any way diseased, and understood that the necessity for an operation applied to her right ear only. She repaired to the hospital, and was placed under the influence of anaesthetics; and, after being made unconscious, defendant made a thorough examination of her left ear, and found it in a more serious condition than her right one. A small perforation was discovered high up in the drum membrane, hooded, and with granulated edges, and the bone of the inner wall of the middle ear was diseased and dead. He called this discovery to the attention of Dr. Davis-plaintiff's family physician, who attended the opera tion at her request who also examined the ear and confirmed defendant in his diagnosis. Defendant also further examined the right ear, and found its condition less serious than expected, and finally concluded that the left, instead of the right, should be operated upon; devoting to the right ear other treatment. He then performed the operation of ossiculectomy on plaintiff's left ear; removing a portion of the drum membrane, and scraping away the diseased portion of the inner wall of the ear. The operation was in every way successful and skilfully performed. It is claimed by plaintiff that the operation greatly impaired her hearing, seriously injured her person, and, not having been consented to by her, was wrongful, constituting an assault and battery; and she brought this action to recover damages therefor. The trial in the Court below resulted in a verdict for plaintiff for $14,322.50. . . We come then to a consideration of the questions presented by defendant's appeal from the order denying his motion for judgment notwithstanding the verdict. It is contended that final judgment should be ordered in his favor for the following reasons: (a) That it appears from the evidence received on the trial that plaintiff consented to the operation on her left ear. (b) If the Court shall find that no such consent was given, under the circumstances disclosed by the record, no consent was necessary. (b) We shall consider first the question whether, under the circumstances shown in the record, the consent of plaintiff to the operation was necessary. If, under the particular facts of this case, such consent was unnecessary, no recovery can he had, for the evidence fairly shows that the operation complained of was skilfully performed and of a generally beneficial nature. But if the consent of plaintiff was necessary, then the future questions presented become important. . . . It cannot be doubted that ordinarily the patient must be consulted, and his consent given, before a physician may operate upon him. . . Kinkead on Torts, I, § 375, states the general rule on this subject as follows: "The patient must be the final arbiter as to whether he shall take his chances with the operation, or take his chances of living without it. Such is the natural right of the individual, which the law recognizes as a legal right. Consent, therefore, of an individual, must be either expressly or impliedly given before a surgeon may have the right to operate." There is logic in the principle thus stated, for, in all other trades, professions, or occupations, contracts are entered into by the mutual agreement of the interested parties, and are required to be performed in accordance with their letter and spirit. No reason occurs to us why the same rule should not apply between physician and patient. If the physician advises his patient to submit to a particular operation, and the patient weighs the dangers and risks incident to its performance, and finally consents, he thereby, in effect, enters into a contract authorizing his physician to operate to the extent of the consent given, but no further. It is not, however, contended by defendant that under ordinary circumstances consent is unnecessary, but that, under the particular circumstances of this case, consent was implied; that it was an emergency case, such as to authorize the operation without express consent or permission. The medical profession has made signal progress in solving the problems of health and disease, and they may justly point with pride to the advancements made in supplementing nature and correcting deformities, and relieving pain and suffering. The physician impliedly contracts that he possesses, and will exercise in the treatment of patients skill and learning, and that he will exercise reasonable care and exert his best judgment to bring about favorable results. The methods of treatment are committed almost exclusively to his judgment. But we are aware of no rule or principle of law which would extend to him free license respecting surgical operations. Reasonable latitude must, however, be allowed the physician in a particular case; and we would not lay down any rule which would unreasonably interfere with the exercise of his discretion, or prevent him from taking such measures as his judgment dictated for the welfare of the patient in a case of emergency. If a person should be injured to the extent of rendering him unconscious, and his injuries were of such a nature as to require prompt surgical attention, a physician called to attend him would be justified in applying such medical or surgical treatment as might reasonably be necessary for the preservation of his life or limb, and consent on the part of the injured person would be implied. And again, if, in the course of an operation to which the patient consented, the physician should discover conditions not anticipated before the operation was commenced, and which, if not removed, would endanger the life or health of the patient, he would, though no express consent was obtained or given, be justified in extending the operation to remove and overcome them. But such is not the case at bar. The diseased condition of plaintiff's left ear was not discovered in the course of an operation on the right which was authorized, but upon an independent examination of that organ, made after the authorized operation was found unnecessary. Nor is the evidence such as to justify the Court in holding, as a matter of law, that it was such an affection as would result immediately in the serious injury of plaintiff, or such an emergency as to justify proceeding without her consent. She had experienced no particular difficulty with that ear, and the questions as to when its diseased condition would become alarming or fatal, and whether there was an immediate necessity for an operation, were, under the evidence, questions of fact for the jury. (a) The contention of defendant that the operation was consented to by plaintiff is not sustained by the evidence. At least, the evidence was such as to take the question to the jury. This contention is based upon the fact that she was represented on the occasion in question by her family physician; that the condition of her left ear was made known to him, and the propriety of an operation thereon suggested, to which he made no objection. It is urged that by his conduct he assented to it, and that plaintiff was bound thereby. It is not claimed that he gave his express consent. It is not disputed but that the family physician of plaintiff was present on the occasion of the operation, and at her request. But the purpose of his presence was not that he might participate in the operation, nor does it appear that he was authorized to consent to any change in the one originally proposed to be made. Plaintiff was naturally nervous and fearful of the consequences of being placed under the influence of anaesthetics, and the presence of her family physician was requested under the impression that it would allay and calm her fears. The evidence made the question one of fact for the jury to determine. Orders affirmed.1 1 [PROBLEMS: The plaintiff and the defendant were at a hotel, waiting to attend as witnesses in court. Both went to bed drunk. The defendant next morning roused the plaintiff who was still in a stupor, and got him downstairs on the street, and on the way to court the plaintiff was injured. Is the defendant liable? (1876, Hoffman v. Eppers, 41 Wis. 251.) The plaintiff boy was run over by the defendant's train. The defendant's servants carried the plaintiff to the city hospital from a house near the track, though the plaintiff expressed his unwillingness and told them that a doctor had been sent for. Is the defendant liable? (1902, Ollet v. R. Co., 201 Pa. 361, 50 Atl. 1011.) The plaintiff's child, seventeen years old, died in the hospital under an operation by the defendant for tumor. The operation was consented to by the child, and by a sister and an aunt who were present at the consultation, but not by the plaintiff's father, who knew nothing of the expected operation. Has he an action for loss of service? (1906, Bakker v. Welsh, 144 Mich. 632, 108 N. W. 94.) The defendant was the wife of the brother of the plaintiff's testator. Immediately on the death of the latter, which occurred in his own house in a drinking bout with other persons, she took some of his diamonds and jewelry from an unlocked drawer, and placed them for safety in a box in an unlocked cupboard in the next room. The articles were never found again. Is the defendant liable to the plaintiff's executor? (1876, Kirk v. Gregory, L. R. 1 Ex. Div. 55.) Is the consent of the husband necessary, to avoid liability to him for the consequences of an operation performed on the wife? (1906, Pratt v. Davis, 224 Ill. 300, 79 N. E. 562). NOTES: "Unauthorized operation by surgeon." (C. L. R., V, 395, 406.) "Physicians and Surgeons: Necessity of patient's consent to operation." (H. L. R., XVIII, 624.) "Civil liability: Physician's liability for operation without patient's consent." (H. L. R., XIX, 220.) "Exemplary damages: Against surgeon for operation performed without patient's consent." (H. L. R., XX, 501.) "Physician. Unauthorized operation by." (M. L. R., IV, 49.) "Operation on minor without consent of parent." (M. L. R., V, 40.)] |