Hood v. Moffett

• Citation: 109 Miss. 757,69 So. 664
• Decision Date: 11 October 1915
• Docket Number: 17077
• Court: Mississippi Supreme Court
• Parties: HOOD v. MOFFETT

69 So. 664

109 Miss. 757

HOOD v. MOFFETT

No. 17077

Supreme Court of Mississippi

October 11, 1915

APPEAL from the circuit court of Harrison county. HON. T. H BARRETT, Judge.

Suit by Mrs. Lena Moffett against Dr. B. S. Hood. From a judgment for plaintiff, defendant appeals.

This is a suit in which a judgment for damages was rendered in favor of appellee for an alleged breach of a contract on the part of appellant.

Several weeks prior to the 14th day of September, 1912, appellant entered into a contract with appellee's husband, for her benefit, to attend and render to her medical assistance at her approaching accouchement, for which he was to receive the sum of twenty dollars. This money according to appellant, was to be sent him by the messenger who should summon him to appellee's bedside, but according to Moffett nothing was said about the payment being made in advance. About ten o'clock on the night of Friday, the 14th day of September, appellee was attacked by what she supposed to be labor pains. Whereupon a messenger was sent to appellant, who lived in a village about six miles distant, to come at once the sum of twelve dollars and fifty cents being sent by this messenger to be delivered to the doctor along with the message; that being all the money Moffett then had. This message was delivered to appellant at the home of another female patient, who was then also about to be delivered of a child. At what hour this message was actually delivered to appellant, if the same is of importance, does not appear, but the messenger left Moffett's residence about ten o'clock p. m. and returned before two o'clock a. m Appellant could not leave the patient he was then attending so that this messenger sought to obtain the services of two other physicians in the village, but, having failed to do so returned to appellant and again requested that he attend appellee. Appellant agreed to attend Mrs. Moffett, and told him to tell her husband that he thought he could leave his then patient in about an hour and a half, and that if he could not leave within that time "he would get up there between then and daylight," and also to tell Moffett that in event, he, appellant, should not be needed for Moffett, "to let him know at his expense and save him the trip up there." According to the testimony of appellant, the message he sent Moffett was as follows:

"I told him to tell Mr. Moffett I would be up there to-night, provided I got through with Mrs. Lott. If I didn't come that night to wire me the next morning at my expense, if his wife was still sick I would come in the morning, to save me the drive up there."

The patient appellant was then attending was not delivered of the child, and continued to require his immediate attention until about six o'clock p. m. of the next day. When Moffett's message was delivered to appellant the messenger also gave him the money sent by Moffett, which he, appellant, accepted and retained. Mrs. Moffett's child was not born until the night of the following Thursday, she having then obtained the services of another physician. There was some testimony of physicians that Mrs. Moffett must have been mistaken in thinking that she was suffering from labor pains when her husband sent for appellant; that her pains must have been "false" instead of real labor pains, but that if false the pain could have been relieved by a physician. On the contrary, Mrs. Moffett stated that she had given birth to a number of children, that she knew labor pains from past experience, and that had Dr. Hood attended her on the night or morning after he was sent for she would have been delivered of the child within two or three hours. She suffered pains stated by her to be labor pains at intervals from Friday night until Thursday night. Appellee's husband stated that he went to appellant's office Monday afternoon to see him about the matter, but that he was absent at a lumber camp some distance away. Appellant stated that had he been again requested to attend Mrs. Moffett he would have done so, provided the remainder of the fee was paid; that he kept the twelve dollars and fifty cents, intending to apply it in event he should not be called upon to attend Mrs. Moffett to an indebtedness then due him by Moffett for services rendered to his family in the past.

Affirmed.

Mize & Mize, for appellant.

This is a plain contract between N. J. Moffett and Dr. Hood by the terms of which Dr. Hood was to wait on his wife when she was confined, and that he might be expected to be called at any time after the 14th of August. That the case went on but he was not called until the 14th of September following, and at the time he was called he was attending a very similar case and the patient was in a very dangerous condition and he could not then leave her.

We do not think it is incumbent in a case of this kind for a doctor to leave a patient who is in a precarious condition to attend one that he had previously contracted to attend to, one that is needing his service while he is attending one in a precarious condition, and it is undisputed in this case that Mrs. Batson was in a precarious condition. Especially is it so when the contract is indefinite as to time, it being impossible for Dr. Hood to have told exactly when Mrs. Moffett would need him, and therefore being called when he had no notice of the time when Mrs. Moffett actually needed him, and being on another case it was his duty to stay with Mrs. Batson and not leave her if she was in a precarious condition, and even though Mrs. Moffett did demand his services under a previous contract while he was in attendance on Mrs. Batson.

The very nature of a physician's business is such that sometimes his services will be needed in two places at one time, as in this case. This was just an ordinary contract between Moffett and Hood, and we submit that the peremptory instruction should have been given.

Instruction No. 1 given for the plaintiff is fatally erroneous. This instruction will be found at the bottom of page 14, and is a very long one. The instruction tells the jury, after setting out the contract between Hood and Moffett, that under the circumstances Hood was bound to do one of two things, either to send another doctor to the plaintiff or to notify the plaintiff so that notification would reach her not later than the expectation of time he was to be there under his promise aforesaid.

It is not shown that he could have sent another physician at the time he was needed by Mrs. Moffett. Of course he had no power to make another doctor go; and secondly, it tells the jury that he was bound to notify the plaintiff so that notification would reach her not later than the expectation of time that he was to be there under his promise aforesaid.

The instruction assumes that Hood did make a promise that he would be there at daylight unless he was notified not to come. Hood's testimony was that he told the parties that if she did not get any better to notify him and he would come. This part of the instruction plainly assumes that Hood promised to be there by daylight unless he was notified not to come, and which is the reverse of what Dr. Hood stated.

The instruction is further erroneous, in that it authorizes the jury to find damages for mental suffering to the plaintiff. This is clearly erroneous because mental suffering is never allowed in cases of this kind nor in any case in this state in the absence of physical injury, Vol. 1, Bobbs & Merrill, Miss. Digest, page 824. There is no physical injury within the meaning of mental suffering allowable in this case; and secondly, it authorizes the jury to find punitive damages for wilful and intentional breach of the contract. This is erroneous because there is no evidence of any wilful and intentional breach of contract in this case; and secondly, punitive damages is never allowable in cases of breach of contract unless the breach was malicious.

U. B. Parker and Bowers & Bowers, for appellee.

Appellant complains of the only instruction given for appellee, because it tells the jury that under the circumstances Dr. Hood was bound to do one of two things, either to send another doctor to the plaintiff or to notify the plaintiff so that the notification would reach her not later than the expectation of time he was to be there under his promise, that the instruction is erroneous, and says that it was not shown that he could have sent another physician at the time he was needed by Mrs. Moffett, having no power to make doctors go. Appellant does not succeed in justifying himself for failure to notify Mrs. Moffett so that the notification would reach her not later than the expectation of time he was to be there under his promise. This he certainly could have done and we insist was certainly his duty.

Appellant insists that the instruction is further erroneous in that it instructs the jury to find damages for mental suffering to plaintiff, citing Mississippi Digest, page 824, and says there is no physical injury within the meaning of mental suffering allowable in this case. The citation given by appellant refers to Dorrah v. Illinois Central Railroad Company, 65 Miss. 14, 7 Am. St. Rep. 629, and Telegraph Company v. Rodgers, 68 Miss. 748, 13 L. R A. 859. An examination of the first of these cases will disclose the fact that this was a suit by Dorrah against the Illinois Central Railroad Company in which the plaintiff was carried twenty miles distant from the station at which he had intended to stop and it cost him thirty-five cents to purchase a ticket to return to this station and that he lost one day's time worth two dollars. The court instructed the jury that the case was not a proper one for punitive damages and that the case must be limited to actual...