Cotnam v. Wisdom

• Decision Date: 15 July 1907
• Citation: 104 S.W. 164,83 Ark. 601
• Parties: COTNAM v. WISDOM
• Court: Arkansas Supreme Court

104 S.W. 164

83 Ark. 601

COTNAM v. WISDOM

Supreme Court of Arkansas

July 15, 1907

Appeal from Pulaski Circuit Court; Robert J. Lea, Judge; reversed.

F. L Wisdom and George C. Abel presented a claim against the estate of A. M. Harrison, deceased, of which T. T. Cotnam is administrator, for $ 2,000 on account of surgical attention to the deceased, who was killed by being thrown from a street car.

The probate court allowed the account in the sum of $ 400, and the administrator appealed to the circuit court.

The evidence showed that deceased received fatal injuries in a street car wreck; that while he was unconscious some person summoned Dr. Wisdom to attend him: that Dr. Wisdom called in Dr. Abel, an experienced surgeon, to assist him; that they found that the patient was suffering from a fracture of the temporal and parietal bones, and that it was necessary to perform the operation of trephining; that the patient lived only a short time after the operation, and never recovered consciousness.

Dr Abel testified, over defendant's objection, that the charge of $ 2,000 was based on the result of inquiry as to the financial condition of deceased's estate. It was further proved, over defendant's objection that deceased was a bachelor, and that his estate, which amounted to about $ 18,500, including $ 10,000 of insurance, would go to collateral heirs.

Various physicians testified as to the customary fees of doctors in similar cases, and fixed the amount at various sums ranging from $ 100 to $ 2,000. There was also evidence that the ability of the patient to pay is usually taken into consideration by surgeons in fixing their fee.

At the plaintiffs' request the court charged the jury as follows:

"1. If you find from the evidence that plaintiffs rendered professional services as physicians and surgeons to the deceased, A. M. Harrison, in a sudden emergency following the deceased's injury in a street car wreck, in an endeavor to save his life, then you are instructed that plaintiffs are entitled to recover from the estate of the said A. M Harrison such sum as you may find from the evidence is a reasonable compensation for the services rendered.

"2. The character and importance of the operation, the responsibility resting upon the surgeon performing the operation, his experience and professional training, and the ability to pay of the person operated upon, are elements to be considered by you in determining what is a reasonable charge for the services performed by plaintiffs in the particular case."

In his opening statement to the jury, counsel for claimants stated that "Harrison was worth $ 8,000, and had insurance, and his estate was left to collateral heirs, that is, to nephiews and nieces." Counsel for defendant objected to such argument, but the court overruled the objection; and the defendant saved his exceptions.

Verdict for $ 650 was returned in plaintiffs' favor. Defendant has appealed.

Judgment reversed and cause remanded.

Mehaffy, Williams & Armistead, for appellant.

1. Instruction No. 1 ignores and eliminates the usual requirements that before recovery for services performed there shall be a contract, either express or implied, in fact or by implication of law. 2 Mason, 541; The Iroquois, 113 Fed.; 108 Id. 292; 58 Ark. 407-418; 84 N.C. 674; 75 Id. 191; 2 East, 505; 12 Johns. 351.

2. The court should have instructed the jury to consider the question of benefits. 81 Ala. 287; 86 Ill.App. 159.

3. It was not competent to prove the value of the estate, and error to instruct the jury to consider the ability to pay in determining what was a reasonable fee. 123 Ala. 391; 47 Iowa 625; Lange v. Kearney, 4 N.Y.S. 14.

Moore, Smith & Moore, for appellees.

1. Implied or quasi-contracts have long been upheld. 29 Pa.St. 465; 53 N.H. 630; 1 Beach, Mod. Cont. §§ 440-3. Page on Cont. §§ 833, 867; 64 L.R.A. 829; 59 Ga. 413; Gilpin's Rep. 447; 95 Minn. 201.

2. The court properly refused to require plaintiff's to prove the benefit, if any, derived from the operation. 116 Wisc. 39; 81 Ala. 287; 86 Ill.App. 159.

3. It was proper to charge the jury to consider the ability to pay, and to prove the value of the estate. 123 Ala. 391; 47 Ia. 625; 4 N.Y.S. 15; 35 La.Ann. 796; 50 Id. 480.

OPINION

HILL, C. J.

The Reporter will state the issues and substance of the testimony, and set out instructions one and two given at instance of appellees, and it will be seen therefrom that instruction one amounted to a peremptory instruction to find for the appellees in some amount.

1. The first question is as to the correctness of this instruction. As indicated therein, the facts are that Mr. Harrison, appellant's intestate, was thrown from a street car, receiving serious injuries which rendered him unconscious, and while in that condition the appellees were notified of the accident and summoned to his assistance by some spectator, and performed a difficult operation in an effort to save his life, but they were unsuccessful, and he died without regaining consciousness. The appellant says: "Harrison was never conscious after his head struck the pavement. He did not and could not, expressly or impliedly, assent to the action of the appellees. He was without knowledge or will power. However merciful or benevolent may have been the intention of the appellees, a new rule of law, of contract by implication of law, will have to be established by this court in order to sustain the recovery." Appellant is right in saying that the recovery must be sustained by a contract by implication of law, but is not right in saying that it is a new rule of law, for such contracts are almost as old as the English system of jurisprudence. They are usually called "implied contracts;" more properly, they should be called quasi-contracts or constructive contracts. See 1 Page on Contracts, § 14; also 2 Page on Contracts, § 771.

The following excerpts from Sceva v. True, 53 N.H. 627, are peculiarly applicable here:

"We regard it as well settled by the cases referred to in the briefs of counsel, many of which have been commented on at length by Mr. Shirley for the defendant, that an insane person, an idiot, or a person utterly bereft of all sense and reason by the sudden stroke of an accident or disease, may be held liable, in assumpsit, for necessaries furnished to him in good faith while in that unfortunate and helpless condition. And the reasons upon which this rests are too broad, as well as too sensible and humane, to be overborne by any deductions which a refined logic may make from the circumstance that in such cases there can be no contract or promise in fact--no meeting of the minds of the parties. The cases put it on the ground of an implied contract; and by this is not meant, as the defendant's counsel seems to suppose, an actual contract--that is, an actual meeting of the minds of the parties, an actual, mutual understanding, to be inferred from language, acts and circumstances by the jury--but a contract and promise, said to be implied by the law, where, in point of fact, there was no contract, no mutual understanding, and so no promise. The defendant's counsel says it is usurpation for the court to hold, as a matter of law, that there is a contract and a promise when all the evidence in the case shows that there was not a contract, nor the semblance of one. It is doubtless a legal fiction, invented and used for the sake of the remedy. If it was originally usurpation, certainly it has now become very inveterate, and firmly fixed in the body of the law.

* * * *

"Illustrations might be multiplied, but enough has been said to show that when a contract or promise implied by law is spoken of, a very different thing is meant from a contract in fact whether express or tacit. The evidence of an actual contract is generally to be found, either in some writing made by the parties, or in verbal communications which passed between them, or in their acts and conduct considered in the light of the circumstances of each particular case. A contract implied by law, on the contrary, rests upon no evidence. It has no actual existence; it is simply a mythical creation of the law. The laws says that it shall be taken that there was a promise when, in point of fact, there was none. Of course, this is not good logic, for the obvious and sufficient reason that it is not true. It is a legal fiction, resting wholly for its support on a plain legal obligation and a plain legal right. If it were true, it would not be a fiction. There is a...