De May v. Roberts

• Decision Date: 08 June 1881
• Citation: 46 Mich. 160,9 N.W. 146
• Court: Michigan Supreme Court
• Parties: DE MAY v. ROBERTS.

9 N.W. 146

46 Mich. 160

DE MAY v. ROBERTS.

Supreme Court of Michigan

June 8, 1881

Where a physician takes an unprofessional unmarried man with him to attend a case of confinement, and no real necessity exists for the latter's assistance, both are liable in damages and it makes no difference that the patient or husband supposed at the time that the intruder was a medical man and therefore submitted without objection to his presence. Damages may lie for an injury done when its full extent is discovered, though long after the act from which it springs. A physician took an unprofessional friend with him to attend a case of confinement when there was no emergency requiring the latter's presence. The physician told the patient's husband that he had brought a friend with him to help him carry his things and he was accordingly admitted. The patient on afterwards discovering the facts sued both in damages. Held, that the plaintiff and her husband had a right to presume that the outsider was a medical associate; that in obtaining admission without disclosing his true character the defendants were guilty of deceit; that plaintiff had a right to testify that she had supposed he was a physician or medical student, and also to give evidence of whatever may have been said at the time tending to support such supposition. It was also admissible to ask a competent witness as to the custom among physicians in regard to calling assistance in these cases. A witness cannot be asked what he stated in an affidavit, but the affidavit itself must be produced.

Error to Gratiot. Defendants bring error.

H. Walbridge and B.H. Sawyer, for plaintiffs in error.

John H Kimball and Jas. K. Wright, for defendant in error.

MARSTON C.J.

The declaration in this case in the first count sets forth that the plaintiff was at a time and place named a poor married woman, and being confined in child-bed and a stranger employed in a professional capacity defendant De May who was a physician; that defendant visited the plaintiff as such, and against her desire and intending to deceive her wrongfully, etc., introduced and caused to be present at the house and lying-in room of the plaintiff and while she was in the pains of parturition the defendant Scattergood, who intruded upon the privacy of the plaintiff, indecently, wrongfully and unlawfully laid hands upon and assaulted her, the said Scattergood, which was well known to defendant De May, being a young unmarried man, a stranger to the plaintiff and utterly ignorant of the practice of medicine, while the plaintiff believed that he was an assistant physician, a competent and proper person to be present and to aid her in her extremity.

The second and third counts while differing in form set forth a similar cause of action.

The evidence on the part of the plaintiff tended to prove the allegations of the declaration. On the part of the defendants evidence was given tending to prove that Scattergood very reluctantly accompanied Dr. De May at the urgent request of the latter; that the night was a dark and stormy one, the roads over which they had to travel in getting to the house of the plaintiff were so bad that a horse could not be rode or driven over them; that the doctor was sick and very much fatigued from overwork, and therefore asked the defendant Scattergood to accompany and assist him in carrying a lantern, umbrella and certain articles deemed necessary upon such occasions; that upon arriving at the house of the plaintiff the doctor knocked, and when the door was opened by the husband of the plaintiff, De May said to him, "that I had fetched a friend along to help carry my things;" he, plaintiff's husband, said all right, and seemed to be perfectly satisfied. They were bid to enter, treated kindly and no objection whatever made to the presence of defendant Scattergood. That while there Scattergood, at Dr. De May's request, took hold of plaintiff's hand and held her during a paroxysm of pain, and that both of the defendants in all respects throughout acted in a proper and becoming manner actuated by a sense of duty and kindness.

Some preliminary questions were raised during the progress of the trial which may first be considered. The plaintiff when examined as a witness was asked, what idea she entertained in reference to Scattergood's character and right to be in the house during the time he was there, and answered that she thought he was a student or a physician. To this there could be no good legal objection. It was not only important to know the character in which Scattergood went there, but to learn what knowledge the plaintiff had upon that subject. It was not claimed that the plaintiff or her husband, who were strangers in that vicinity, had ever met Scattergood before this time or had any knowledge or information concerning him beyond what they obtained on that evening, and it was claimed by the defendant that both the plaintiff and her husband must have known, from certain ambiguous expressions used, that he was not a physician.

We are of opinion that the plaintiff and her husband had a right to presume that a practicing physician would not, upon an occasion of that character, take with him and introduce into the house, a young man in no way, either by education or otherwise, connected with the medical profession; and that something more clear and certain as to his non-professional character would be required to put the plaintiff and her husband upon their guard, or remove such presumption, than the remark made by De May...