Becker v. Humphries
| Decision Date | 19 November 1925 |
| Docket Number | 16269. |
| Parties | BECKER v. HUMPHRIES. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In an action by a physician to recover for professional services rendered. it is sufficient to allege that he is a physician and was employed as such, that he rendered the services alleged, and that the reasonable value of the same was the amount sued for. It is not necessary that he should further allege that he is licensed.
A suit upon an open account may be sustained though the evidence shows an express agreement, where it is further proved that the plaintiff has fully performed his part of the agreement and nothing remains to be done except for the other party to make payment. Although the physician in this case was suing for the value of medical services rendered to a third person it was not necessary, the action being on account, to allege an express agreement to pay, irrespective of whether such agreement should be proved, to entitle him to recover.
Where a person requests a physician to perform services for a third person, for whom the person making the request is under no obligation to procure and pay for medical aid, the law does not raise an implied promise to pay, merely because of the request and of the furnishing of the services in compliance therewith. In such a case the physician cannot recover against the person calling him unless it appears that the services were rendered under an express contract that the person making the request is to pay therefor, or unless the proved surrounding circumstances plainly indicate that it was the intention of both parties, at the time, that the services were to be furnished on the credit of the person requesting them. While in this case there was no evidence of such express promise, there was circumstantial evidence to authorize the inference of an intention by both parties that the defendant should be liable. There is no merit in any of the special grounds of the defendant's motion for a new trial. The court did not err in overruling the motion.
Additional Syllabus by Editorial Staff.
Where copy of account attached to petition showed that plaintiff was an the Court of Appeals will take judicial cognizance that the abbreviation imports prima facie that plaintiff was a physician.
Error from Superior Court, Camden County; J. P. Highsmith, Judge.
Action by D. G. Humphries against J. H. Becker. Judgment for plaintiff, and defendant brings error. Affirmed.
L. J. Cowart, of St. Marys, and Jas. T. Vocelle, of Vero, Fla., for plaintiff in error.
S. C. Townsend, of St. Marys, for defendant in error.
D. G. Humphries brought a suit against J. H. Becker, alleging that the defendant was indebted to him in the sum of $570 on an account, a copy of which was attached to and made a part of the petition, and was as follows:
Mr. J. H. Becker, to D. Granville Humphries, M. D., Dr.
10, 11, 12, 13, 14, each $35 ........................................ $420 00
Two visits to J. D. Skinner on order 1918, Dec. 15 ...................... 50 00
Dr. Freeman: To consultation to order of J. H. Becker .................. 100 00
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Defendant filed a general demurrer, which the court overruled. The case proceeded to trial, and resulted in a verdict in the plaintiff's favor for $310. The defendant moved for a new trial on the usual grounds and on a number of special grounds, and, the motion having been overruled, he has brought the case to this court, complaining of the overruling of his demurrer and of the refusal of his motion for a new trial.
1. Counsel for plaintiff in error contend that the petition failed to set forth a cause of action because there is no allegation that the plaintiff had been licensed to practice medicine in the state of Georgia. We think that the allegation was unnecessary. In the first place it appears that the physician was located in the state of Florida, and the petition does not show on its face that he practiced in Georgia. The account is for medical services rendered to one J. D. Skinner, without disclosing where they were rendered. So far as appears from the petition, the patient may have been in Florida or elsewhere. But, regardless of this, it seems to be the rule that in an action by a physician for the value of professional services rendered by him it is sufficient to allege that he is a physician, that he was employed as such, that he rendered the services alleged, and that the reasonable value thereof was the amount sued for. Fincher v. Davis, 27 Ga.App. 494 (2), 108 S.E. 905. By the weight of authority it was not necessary that the petition should go further and show that he had a license to practice according to the legal requirements of the state in which the services were performed. Of course, if it appears that the physician was practicing without a license, in violation of statute, he cannot recover. Murray v Williams, 121 Ga. 63, 48 S.E. 686. But this would ordinarily be a matter of defense. In Durand v. Grimes, 18 Ga. 693 (1), one of the grounds of error was that, in the declaration, it was not averred that the plaintiff was a licensed physician, and, as such, entitled to sue for and recover for his medical services. The Supreme Court said: "By reference to the forms in Chitty it will not be necessary to make this allegation." See, also, in this connection, Avera v. Tool, 74 Ga. 398 (2); Griner v. Baggs, 4 Ga.App. 232 (1), 61 S.E. 147; Bartow Guano Co. v. Adair, 29 Ga.App. 644 (3), 116 S.E. 342; Leggat v. Gerrick, 35 Mont. 91 (2), 88 P. 788, 8 L.R.A. (N. S.) 1238; 22 Am. & Eng. Encyc. of Law (2d Ed.) 798; 30 Cyc. 1601. What is said upon this question in Grantham v. Fleming, 13 Ga.App. 184 (2), 78 S.E. 1113, is obiter. The copy of the account, which was expressly made a part of the petition, shows that the plaintiff was an and this court will take judicial cognizance that this abbreviation imports prima facie that the plaintiff was a physician. Towler v. Carithers, 4 Ga.App. 518, 61 S.E. 1132.
3. A further contention (the only other one made under the demurrer) is that it appears from the petition that the plaintiff is claiming a liability against the defendant for professional services rendered to a third person, for which it is insisted the plaintiff cannot recover without showing an express agreement by the defendant to pay for the same. Even if so, the petition was sufficient to withstand the attack of a mere general demurrer based upon this ground. It alleges that the defendant was indebted on the account, and that the services were rendered "on order," the reasonable inference being that the order was that of the defendant. Furthermore, suit upon an open account may be sustained though the evidence shows an express agreement, where it is proved that the plaintiff has fully performed his part of the agreement and nothing remains to be done except for the other party to make payment. In the nature of the action it was not necessary for the plaintiff to allege an express agreement by the defendant to pay, irrespective of whether such agreement should be proved to entitle him to recover. Chatham Abattoir & Packing Co. v. Painter Engineering Co., 28 Ga.App. 383 (1), 111 S.E. 82, 1 Corpus Juris, 649, 650; Southern Ry. Co. v. Grant, 136 Ga. 303, 71 S.E. 422, Ann.Cas. 1912C, 472. As against the contentions which the plaintiff in error has made we hold that the court did not err in overruling the general demurrer.
4. We come next to the consideration of the exceptions to the overruling of the motion for a new trial. The evidence being otherwise sufficient to authorize the verdict, we address ourselves to the one question as to whether or not the proof was sufficient to show the defendant's liability for medical services rendered to a third person. The plaintiff testified as follows:
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