Morfit v. Thompson
| Decision Date | 02 March 1926 |
| Citation | 282 S.W. 113,219 Mo.App. 506 |
| Parties | JOHN C. MORFIT, Respondent, v. WALTER D. THOMPSON and MABEL GREEN THOMPSON, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. John W. Calhoun, Judge.
AFFIRMED AS TO WALTER D. THOMPSON.
REVERSED AS TO MABEL GREEN THOMPSON.
AFFIRMED AS TO WALTER D. THOMPSON. REVERSED AS TO MABEL GREEN THOMPSON.
McDonald & Just and Frank B. Coleman for appellants.
(1) In the absence of an express contract, neither parent is liable for medical services rendered an adult child living under the parental roof, even though they called the physician or surgeon, there being no implied promise to pay for medical services by one who calls a physician, unless the person making the request is under legal obligation to provide such services to the patient, and parents are not liable for the support of adult children. Meisenbach v. Cooperage Co., 45 Mo.App. 232; Jesserich v. Walruff, 51 Mo.App. 270; Rankin v. Beale, 68 Mo.App. 325; Morrell v. Lawrence, 203 Mo. 363; Weinsberg v Cordage Co., 135 Mo.App. 564; Crowell v Donaho, 168 Mo.App. 305; 30 Cyc. 1597; Spellman v Mining Co., 55 L. R. A. 640; Boyd v. Sappington, 4 Watts (Pa.) 247; Crane v. Bandouine, 55 N.Y. 256; Mining Co. v. Montana Ore P. Co., 21 Mont. 537; Trent v. Sherlock, 24 Mont. 255; Baker v. Witten (Okla. July 1, 1892); Veitch v. Russell, 3 Ad. & El. 927; Smith v. Watson, 14 Vt. 332; Starrett v. Wiley, 79 Ill.App. 658; Holmes v. McKim, 109 Iowa 245; Williams v. Bricknell, 37 Miss. 682; Norton v. Rourke, 130 Ga. 600. (2) In a suit by a surgeon for his fees, his general reputation as a surgeon and his experience as a surgeon are immaterial where it is conceded that he possesses the requisite skill to perform the operation, and it is reversible error to admit evidence on that subject. Morrell v. Lawrence, 203 Mo. 363. (3) Evidence of the financial condition or ability of defendant to pay as a basis for determining the reasonable value of plaintiff's services is improper. The financial status of the defendants being utterly immaterial, it was error to admit evidence as to their residence, for this court may take judicial notice of the class of residences "opposite the Blair statue in Forest Park," that being a matter of common knowledge. Morrell v. Lawrence, 203 Mo. 363. (4) Where a surgeon's charges are unreasonable and excessive, the court may take judicial notice of that fact, it being a matter of common knowledge, and judicial knowledge of facts is measured by general knowledge of the same facts. Hackworth v. Railway, 286 Mo. 282; Valley Springs, etc., v. Plagmann, 282 Mo. 1; Yates v. United Rys., 222 S.W. 1035. (5) It being shown by undisputed testimony that Miss Mabel Thompson was past twenty-one years of age on July 28, 1923, it follows that she became eighteen years of age prior to July, 1920, and thereupon became an adult at law, as the statute of 1921 raising the age of majority became effective June 20, 1921. Mo. Sess. Act 1921, pp. 399, 718. (6) Majority is a personal status and when once vested cannot be taken away by statute. Nahorski v. Terminal, 274 S.W. 1025 (Mo. S.Ct. July 1, 1925).
Abbott, Fauntleroy, Cullen & Edwards for respondent.
This is an action by plaintiff, a surgeon, against defendants, husband and wife, to recover the value of two surgical operations performed by plaintiff upon the children of defendants. There was a verdict on the first count of the petition for plaintiff and against defendant Walter D. Thompson alone in the sum of $ 1500, with interest, totaling $ 1615.25, and against both defendants in the sum of $ 1,000, with interest, aggregating $ 1076.83, on the second count. Judgment was entered on the verdict and defendants have appealed.
In the first count of the petition it is alleged that on July 22, 1923, at the special instance and request of defendants, plaintiff performed an operation for sepsis, peritonitis, abdominal abscess and appendicitis on Marian Thompson, a daughter of defendants; that the fair and reasonable value of plaintiff's services for same was $ 3020; that, though demand had been made, no part of said debt had been paid.
The second count is based upon a charge of $ 1070 for an abdominal exploratory and appendectomy operation performed by plaintiff upon Mabel G. Thompson, an older daughter, on July 28, 1923.
Defendants separately filed answers in the form of general denials.
Plaintiff's evidence discloses that he was called to the home of defendants in St. Louis, Missouri, on July 22, 1923, by Mr. Thompson, for consultation with the family physician, Dr. Armand Ravold, with reference to the condition of defendants' younger daughter, Marian, thirteen years of age, and that upon examination he found that the child was then in a most serious condition, suffering from appendicitis and other complications. The child was rushed to a hospital and an operation was performed the same evening. After the incision was made into the abdominal cavity it was found that the appendix was gangrenous and broken, and that the several organs of the body were involved, and that peritonitis had set in. All of these conditions were corrected. The patient remained in the hospital for three weeks and was under plaintiff's care at her home for a week or ten days longer, or for a total of thirty-one days. In addition to the consultation with Dr. Ravold and the operation, plaintiff made twenty-nine hospital visits, nine house visits and had the child at his office five times for the use of X-rays. Her recovery was complete.
There is ample evidence that the fair and reasonable value of plaintiff's services in this case was in excess of the verdict of $ 1615.25.
When Marian was operated upon, Mrs. Thompson and the older daughter, Mabel, about twenty-one years of age, were out of the city. After her return, Mrs. Thompson informed plaintiff that their daughter, Mabel, had been diagnosed as having appendicitis and arranged with him to come to their home and examine her. This examination was made on July 26, 1923, and plaintiff advised an operation for chronic appendicitis. Both Mr. and Mrs. Thompson "agreed to an operation," which was performed at St. Luke's Hospital on July 28, 1923. This was simply an appendicitis operation. In this case, plaintiff made nineteen hospital visits and seven home visits. This operation also was successful.
The evidence disclosed that the fair and reasonable value of plaintiff's services in this case was $ 1060.
Defendant Walter D. Thompson testified that he, and he alone made the contract of employment of plaintiff to treat both the children, and that it was agreed that the amount should be "reasonable and satisfactory." Mrs. Thompson denied that she either employed or authorized the employment of plaintiff for the services rendered either of the children.
At the close of all the evidence, the court gave a peremptory instruction to find for Mrs. Thompson on the first count of the petition, covering the operation on the younger daughter, Marian.
It is first contended that the court erred in admitting evidence, over defendants' objection, with reference to plaintiff's training and experience, and especially with reference to his former services in the medical corps of the army. During plaintiff's direct examination, his counsel sought to show that both in civil life and during the World War, when he was a lieutenant colonel in charge of a surgical hospital in France, plaintiff's experience had been such as to require of him more than ordinary attention to appendix and kindred afflictions. Defendants conceded that plaintiff was a surgeon of standing and ability, and argue that for that reason his qualifications were not in dispute and that evidence of such nature was therefore immaterial and prejudicial. We think, however, that this evidence was admissible. It has been expressly held that in an action by a physician or surgeon for professional services rendered by him, it is competent for him to show that he possessed learning and skill, and that such evidence should be considered by the jury in estimating the value of the services rendered. [Morrell v. Lawrence, 203 Mo. 363, 101 S.W. 571.]
The next alleged error assigned in the action of the court in refusing the instructions in the nature of demurrers to both counts of the petition requested by defendant Mrs. Mabel Green Thompson at the close of plaintiff's case, and again at the close of the whole case. Since she did not stand upon the first demurrer, but put in her own evidence, we are concerned only with the demurrer offered at the close of all the evidence, and inasmuch as the court peremptorily instructed the jury to find for her upon the first count of the petition, the only question left for our determination is whether she is liable on the second count, that is, for the operation performed upon the adult daughter, Mabel. It is conceded in the brief that defendant Walter D. Thompson is liable on both counts.
Learned counsel argue that Mrs. Thompson could not be held liable under the second count of the petition unless there was evidence that she ordered the services of plaintiff and promised to pay for same, since her daughter Mabel was an adult at the time the operation was performed upon her. This daughter was over eighteen years of age at the time, and under the law as it then stood, she was an adult.
Before analyzing the evidence under this demurrer, we deem it in place to state that the record discloses that the plaintiff after the daughters had recovered, first rendered a bill against Walter D. Thompson alone for $ 3500. When...
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