Morrell v. Lawrence

• Decision Date: 28 March 1907
• Citation: 203 Mo. 363,101 S.W. 571
• Parties: MORRELL v. LAWRENCE.
• Court: Missouri Supreme Court

101 S.W. 571

203 Mo. 363

MORRELL v. LAWRENCE.

Supreme Court of Missouri, Division No. 1.

March 28, 1907.

1. PHYSICIANS AND SURGEONS—CONTRACT OF EMPLOYMENT—ACTIONS FOR COMPENSATION —QUESTION FOR JURY.

In an action by a physician for professional services, evidence examined, and held sufficient to submit to the jury the questions whether the defendant had reason to believe that the plaintiff would understand the former's telegram, engaging the plaintiff's services to imply an agreement to pay therefor, and whether the plaintiff did in fact so understand.

2. SAME—AMOUNT OF COMPENSATION.

In an action on an implied contract to pay for a physician's services, the plaintiff is entitled to recover, if at all, the reasonable value of the services.

3. SAME—EVIDENCE—REPUTATION OF PHYSICIAN.

Evidence of a physician's good reputation in his community is inadmissible to show the value of his services, in a suit brought by him for the value of such services, where his general professional reputation was not drawn in question.

4. SAME—EVIDENCE OF LEARNING AND SKILL.

Evidence of a physician's learning and skill is competent to be shown in estimating the value of his services.

5. TRIAL — INSTRUCTIONS — ASSUMPTIONS BY JUDGE.

An instruction that, "in determining what is the reasonable value of the services rendered by the plaintiff, the jury should take into account." etc., without instructing them that, before they could reach the question of quantum valebat, they should find for the plaintiff on the main issue, is erroneous.

6. PHYSICIANS AND SURGEONS — ACTION FOR COMPENSATION—PECUNIARY CONDITION OF PATIENT.

In an action by a physician to recover on an implied contract of a father to pay for services rendered his son, where the physician knew of the financial standing of the father and son, evidence that the son was a man of considerable fortune, and amply able to pay for the services, is admissible on the question whether the physician thought the father intended to pay for the services he called him to perform.

7. SAME—PECUNIARY CONDITION OF PERSON CONTRACTING FOR SERVICES.

Evidence of defendant's wealth, as an element to be considered in measuring the value of physician's services, is inadmissible, where it is not in rebuttal of evidence from the other side attempting to show the custom of a lower standard.

8. APPEAL—REVIEW—DISCRETION OF LOWER COURT—NEW TRIAL.

The granting of a new trial, for the reason that the verdict was excessive, is a matter within the discretion of the trial judge, and his action will not be disturbed where his discretion is not abused.

Appeal from St. Louis Circuit Court: O'Neill Ryan, Judge.

Action by M. P. Morrell against Joseph J. Lawrence. From an order granting defendant a new trial, plaintiff appeals. Affirmed.

Boyle & Priest and Edward T. Miller, for appellant. Dawson & Garvin and Rassieur, Schnurmacher & Rassieur, for respondent.

VALLIANT, P. J.

Plaintiff sues on an alleged implied contract of defendant to pay him the reasonable value of his services as a physician rendered to defendant's adult son at defendant's request. The facts are: The defendant and his son, Frank Lawrence, both former residents of St. Louis, were at the time in question living in New York City. The son, 42 years of age, was not living with his father, but at a hotel. He was a man of considerable means, carrying on a business of his own. Plaintiff is a physician residing in St. Louis. While defendant and his son resided in this city, the latter became in bad health, and came under the care of the plaintiff. The relation of physician and patient had existed between them for several years. Plaintiff's bills for medical services rendered in St. Louis to Frank Lawrence were presented to and paid by him. In 1899 plaintiff, in St. Louis, received a telegram from defendant then in Virginia asking him to go to some place in Michigan where his son then was sick, to minister to him as a physician, and plaintiff was on the eve of going, when he received another telegram stating that Frank had already started for his home in St. Louis. On his arrival here, plaintiff rendered him medical services, and he paid the bill. In 1900 Frank Lawrence went to Europe, and the plaintiff went with him as his attending physician. The plaintiff testified that he did not go on that journey at the request of Frank Lawrence alone, but on the request also of Dr. Lawrence, the defendant, who promised plaintiff that he would pay him or see him well remunerated for his services; that, after their return from Europe, he spoke to Dr. Lawrence about paying him, and Dr. Lawrence repudiated the contract—all the pay plaintiff received for his services on that trip, lasting three months, was $1,000, which Frank paid. So much for the business relations between the parties prior to the transaction now in suit. On May 31, 1902, Dr. Lawrence and his son then living in New York and the plaintiff in St. Louis, the plaintiff received a telegram from defendant in the following words: "Frank is quite sick. We would like to have you come and treat him. Leave on noon train Sunday via Big Four. Answer at once." Plaintiff answered June 1st: "Will leave on Big Four at noon to-day." He accordingly arrived in New York on the afternoon of June 2d, was met at the station by a messenger of Dr. Lawrence, conducted to the latter's residence, and after tea was conducted to the hotel where Frank Lawrence lay very ill. Plaintiff remained in constant attendance on the sick man, ministering to him day and night, until he died July 9th. The particular character of the services rendered was in evidence, and there was testimony on the part of the plaintiff tending to show that the services were worth $300, $400, $500, and $1,000 a day. The amount of the bill sued for was $16,000, itemized at $400 a day for 40 days. The evidence on the part of the defendant was that from $4,000 to $6,000, would be ample pay for the services rendered. The verdict was for the plaintiff for $12,666. The court sustained defendant's motion for a new trial, on the ground of error in the instructions, and that the verdict was excessive. The plaintiff appealed.

1. Before we reach the points on which the trial court based its ruling, we must consider the point first presented in the brief for defendant; that is, that the plaintiff made out no case to go to the jury. The defendant's proposition is that from the facts and circumstances shown by the plaintiff's evidence the law implies no promise or obligation on the part of the defendant to pay for the services rendered. There is no express contract on the part of the defendant shown; if he is liable, it is on an implied contract. According to the defendant's estimate of the evidence, there is shown a request by defendant of plaintiff to render services for the benefit of another, and nothing more. In their brief the learned counsel quote the law as laid down in Wood on Master and Servant, § 70: "The rule is that, in order to render one liable for services rendered at his request, they must be rendered for his benefit, or under such circumstances that the person requested to render them was justified in understanding that they were for his benefit or upon his credit. But if the person performing the services knows they are not for the benefit of the person making the request, and that he is under no legal obligation to pay therefor, he cannot predicate a claim against him, unless he expressly promised to pay for them before the services were rendered." That is a correct statement of the general rule of law on that subject, but it is not of invariable application. We see no objection to applying it to the case of one calling a physician to a suffering stranger, when there is nothing in the situation to suggest to the physician that the man calling him has any deeper interest in the case than the prompting of common humanity; and we see no objection to applying the rule to the case of a father calling a physician to wait on his son, if the son is of age and living to himself, and if there is nothing in the conditions to indicate that the father is taking upon himself anything more than the office of messenger for his son. But there is something more than the dictates of common humanity between father and son, and the fact of that relationship is to be considered in connection with other circumstances, if there are other circumstances, indicating to the physician that the father calls him on his own account to serve his son.

In an early Pennsylvania case cited in the brief for defendant (Boyd v. Sappington, 4 Watts, 247), it was held that no contract to pay for the services was implied from the mere fact that the defendant called a physician to attend his adult son lying ill at defendant's home. The evidence showed that the father had called on the physician and made the request. The physician at first hesitated. The father insisted, and the physician complied. The physician knew that the son, although living with his father, was over 21 years old, in business for himself, and had property to answer the demand. The father, when he was requesting the physician to go, stated to him that it was his son's request that he should come. It was held that out of those facts an implied contract on the part of the father to pay the bill did not arise. The court said: "There is nothing in the special circumstances relied on to take it out of the general principle; and it is very clear that, had the defendant been a stranger, however urgent he may have been, and whatever opinions the physician may have formed of his liability, he would not have been chargeable without an express agreement to pay—as, for instance, in the case of an innkeeper or any other individual whose guest may receive the aid of medical advice. A different principle would be very pernicious, as but few would be willing to run the risk of calling in the aid of a physician, where the...