Dyer v. Griffith
| Decision Date | 07 April 1924 |
| Docket Number | 24076 |
| Citation | 261 S.W. 100 |
| Parties | DYER v. GRIFFITH |
| Court | Missouri Supreme Court |
James T. Montgomery and G. W. Barnett, both of Sedalia, for appellant.
Hoffman & Hoffman and Montgomery & Rucker, all of Sedalia for respondent.
This cause is here on appeal upon transference by the Kansas City Court of Appeals, upon the dissent of one of the judges of that court from the majority opinion; he being of the opinion that the conclusions announced in the majority opinion were in conflict with certain prior decisions of that court, and of the Springfield Court of Appeals. The holding of the majority opinion was for affirmance of the judgment obtained by the plaintiff.
The plaintiff, a physician of Sedalia, sued to recover the reasonable value of surgical and medical services alleged to have been rendered by him at the special instance and request of defendant, to Mrs. Helen Griffith Self, the wife of Floyd Self, and the daughter of the defendant. The amount sued for was $ 572, of which $ 500 was for performing upon Mrs. Self the Caesarean operation for the delivery of a child, and the remainder for services subsequent and incidental to the operation. The alleged contract was oral. Denying that she requested plaintiff to perform the service or promised to pay him therefor, the defendant plants her defense upon the ground that the alleged contract was one to answer for the debt of another, and void under the statute of frauds section 2169, R. S. 1919. The plaintiff had a verdict for $ 500 and accrued interest. The point that the sum demanded was in itself unreasonable is not urged here. The only question of importance is whether defendant bound herself to pay plaintiff anything at all. For some months prior to the making of the alleged contract plaintiff had been in attendance upon Mrs. Self at different times as to her condition of pregnancy and also other illness. The position of defendant is that the relation of debtor and creditor already existed between plaintiff and Mrs. Self, and that he had undertaken with her to attend her during childbirth, that there was no evidence that the Selfs were ever released, or that plaintiff undertook the service solely on the credit of defendant, or that defendant was substituted as debtor for the value of the services sued for. This was the view entertained in the dissenting opinion.
The testimony shows that about March, 1920, the plaintiff was called to the home of defendant by the defendant, but for Mrs. Self. Mrs. Self was there, although not at the time living with her mother, but was living with her husband at another place in Sedalia. On that occasion Mrs. Self was troubled with a sore throat and defendant also feared that she might be pregnant, and plaintiff was requested to make and did make an examination to determine whether she was pregnant or not. This he was unable to determine positively at that time. Mrs. Self was abnormally fat, weighing about 100 pounds in excess of a normal weight. On that account the defendant was particularly anxious about her possible pregnancy. At a later time the plaintiff made further examination, and, being sure that Mrs. Self was pregnant, so advised, and he thereafter observed her condition, in a professional way by calling upon her, or being consulted at his office by Mrs. Self, or by defendant for Mrs. Self.
In support of her contention that plaintiff undertook with Mrs. Self and her husband to attend upon and take care of her in her delivery of the child, defendant introduced testimony tending to show that plaintiff's charge was to be $ 25 per an ordinary delivery, and $ 35 for a delivery by the use of instruments. Plaintiff denied this. Defendant also introduced evidence of some conversation between plaintiff and Floyd Self, husband of Mrs. Self, to the effect that if the child should be a girl, Self was to pay him nothing, but if a boy, double price. Plaintiff testified that this was spoken by way of jesting, and before the condition of Mrs. Self made it apparent that the Caesarean operation would be necessary. Mrs. Self went somewhat beyond the usual time, and because of her abnormally fat condition had much trouble. She had labor pains for several nights in succession. Pending these, on Friday morning the 17th day of March, 1920, the defendant called upon plaintiff at his office, telling him that she was very uneasy because he had not come in person in answer to a telephone call the night before. It appears that on the night before, plaintiff had been in the country until midnight, and on his return, being advised of a call from defendant, called her, told her it was not necessary for him to come, that they had a trained nurse, that Mrs. Self had to have those pains, and to give her the medicine; that the nurse would know when to call him. Plaintiff testified that on this Friday morning, defendant stated she thought maybe the reason plaintiff had not come the night before was that he was afraid he would not be paid and that he knew Mr. Self had not supported her daughter. Plaintiff testified that defendant at that time stated to him:
On this morning, also at plaintiff's suggestion, defendant had an understanding with Dr. Beckemeyer, who was plaintiff's associate in his office, that in case plaintiff could not be reached at any time, Beckemeyer should respond to the call. Three days later, on the morning of March 20th, plaintiff testified he found that labor had ceased permanently with Mrs. Self, that the child could not be delivered naturally, and he advised the defendant, for that reason, an operation must be performed without delay; that the chances thereby were reasonably good to save both the baby and the mother. He inquired of defendant what she wanted to do. She replied that she would prefer to have Dr. Kieffer of St. Louis, because he had operated upon herself. It was decided that Dr. Kieffer could not arrive before night, and that the operation ought not to be delayed. Procuring a surgeon from Kansas City was also mentioned between them. As a result, defendant stated: 'Oh, if I couldn't get Dr. Kieffer here I would rather have you to do this.' To which plaintiff answered: 'Now, if you want me to do it, that is all that is necessary.' To that, defendant said: 'Well, it has to be done; go ahead and do it.' The plaintiff then prepared for the operation. The parties went to the hospital where plaintiff had engaged his assistants in the operation to be. While they were at the hospital, and before the operation, it was suggested by defendant that her father would like to have Dr. Yancey and Dr. Shy of Sedalia to be there. Plaintiff's testimony upon this incident is as follows:
'I says: I says: She says: I says: She says: 'No, we just thought we would like to have some one here.' So I says: I says: 'Mrs. Griffith, the more doctors you have, the more you will have to pay.' And she says: 'Well, Doctor, I don't want you to ever mention pay again.' She says: 'Haven't I told you that we are going to spare no expense?'
'Q. Spare no expense? A. She says: 'Haven't I told you that we are going to spare no expense to get this girl well?' and I says: 'You step to the phone and call them.' She says: 'Do you need them?' I says: She says: I says: 'If I needed any more help, I would get them; but I don't want to make too large a bill on you.' She says: 'All right, I won't call them.'
Plaintiff also testified that again, before the operation was begun, the defendant requested him so to perform it that Mrs. Self would thereafter be sterile; that plaintiff inquired whether she had spoken to Mr. Self about such a thing, and defendant replied she had not, and did not intend to; that plaintiff answered he would first have to have a written statement from Self; that it was against the law; and that defendant replied: 'It seems like I ought to get what I want if I am paying for it.'
The operation was performed by plaintiff, and was...
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