Spead v. Tomlinson

• Decision Date: 04 October 1904
• Citation: 59 A. 376,73 N.H. 46
• Parties: SPEAD v. TOMLINSON.
• Court: New Hampshire Supreme Court

59 A. 376

73 N.H. 46

SPEAD

v. TOMLINSON.

Supreme Court of New Hampshire. Merrimack.

Oct. 4, 1904.

Transferred from Superior Court; Peaslee, Judge.

Action by Jennie A. Spead against Irving C. Tomlinson. There was a judgment in favor of defendant, and plaintiff brings exceptions. Exceptions overruled.

Case to recover for damages alleged to have been suffered by the plaintiff at the hands of the defendant, who is a Christian Science healer. The declaration contains counts in contract, negligence, and deceit. Two trials were had in the superior court At the first trial a verdict was ordered for the defendant upon the count in contract, subject to the plaintiff's exception. The case was submitted to the jury upon the other counts, and a disagreement resulted. The court refused to transfer the question raised by the exception to the direction of a verdict, and no bill of exceptions was filed. At the second trial the plaintiff excepted to a denial of her request for permission to introduce evidence upon the count in contract and to the direction of a verdict for the defendant upon the other counts. In April, 1898, the plaintiff, who was then about 55 years old, suffered from an attack of appendicitis, employed a medical practitioner for several months, and learned in a general way the course pursued by physicians in the treatment of that disease. During the summer of 1899 she became interested in the doctrines of Christian Science, and attended meetings where the defendant told of wonderful cures he had performed. November 13, 1899, the plaintiff noticed symptoms similar to those which had ushered in the previous attack of appendicitis, visited the defendant at his home, informed him of the nature of her trouble and her dread of a surgical operation, and employed him to treat her. The defendant told her that a surgical operation was not necessary, that she was not to take any medicine, and that he could and would cure her if she continued his treatment He directed her to read "Science and Health," to continue her usual diet of solids, and to take her accustomed exercise. He also read to her extracts from "Science and Health," and administered treatment by sitting in front of her in an attitude of prayer. The plaintiff employed the defendant for several days, and during this time her illness increased. She finally placed herself in the hands of physicians, submitted to a surgical operation, and was cured. There was evidence tending to show that the defendant's treatment was injurious to the plaintiff, and that, if it had been persisted in, a cure would have been impossible. The plaintiff knew that the defendant made no claim to any knowledge of medicine and surgery, that he relied solely on the power of God to heal disease, and that his advice and treatment were contrary to what she would have received from a physician. She testified that she employed him because she believed he could cure her, and that her belief was based upon his representations as to the efficacy of his treatment in other cases. She further testified that she did not doubt the sincerity of Christian Scientists, nor the sincerity of her own belief in their doctrines at the time she employed the defendant.

Eastman & Hollis and Martin & Howe, for plaintiff.

Streeter & Hollis, for defendant.

BINGHAM, J. 1. Whether the verdict was properly directed for the defendant at the first trial upon the count in contract is not considered, as the question is not before us. At the time of the second trial the counts in negligence and deceit presented the only issues of fact that remained undisposed of; and, while judgment had not been ordered upon the verdict directed upon the count in contract, it seems, as the case then stood, that there was no occasion for a trial of any issue of fact upon that count, and the record presents no error in the ruling of the court as to this matter.

2. In arguing the questions raised by the plaintiff's exception to the verdict directed upon the count in negligence, counsel discussed at some length the standard of care by which the defendant is to be judged. It was contended in behalf of the defendant that it was the care, skill, and knowledge of the ordinary Christian Scientist who undertakes to treat diseases according to the methods practiced by such healers, while the plaintiff's counsel claimed that it was the care, skill, and knowledge of the ordinary physician. The latter position is clearly untenable. The principle involved is not new. It has long been recognized as the law of this state that "a person who offers his services to the community generally, or to any individual, for employment in any professional capacity as a person of skill, contracts with his employer that he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by the professors of the same art or science, and which is ordinarily regarded by the community, and by those conversant with that employment, as necessary and sufficient to qualify him to engage in such business." Leighton v. Sargent, 27 N. H. 460, 469, 59 Am. Dec. 388. The same principle governs the conduct of persons, other than professional men, who undertake duties requiring special qualifications. One employed to do work requiring skill upon a chattel is said to engage to use "that skill and diligence which prudent local workmen of the same class are wont to bestow upon similar undertakings." 1 Schoul. Bail. § 104. If, however, the employé is known not to possess the requisite skill, or is not called upon to exercise the particular art or employment to which he belongs, and he makes no pretension to skill in it, the law does not require that he should exercise the skill he is known not to possess, or the particular art or employment to which he does not belong and in which he does not pretend to be skilled. In such a case, if loss ensues because of his lack of the requisite knowledge and skill in the particular employment, it must be borne by the employer; for the employé, under such circumstances, is responsible only for a failure to reasonably exercise the skill which he possesses, or the judgment which he can employ. As is said in Story's Bailments, § 435; "If a person will knowingly employ a common matmaker to weave or embroider a fine carpet, he must impute the bad workmanship to his own folly. So, if a man who has a disorder of his eye should employ a farrier to cure the disease, and he should lose his sight by using the remedy prescribed in such cases for horses, he would certainly have no legal ground of complaint." And in cases involving the liability of medical practitioners courts have held that, "if there are distinct and differing schools of practice, as allopathic, or old school, homeopathic, Thompsonian, hydropathic, or water cure, and a physician of one of those schools is called in, his treatment is to be tested by the general doctrines of his school, and not by those of other schools." Patten v. Wiggin, 51 Me. 595, 81 Am. Dee. 593; Carpenter v. Blake, 60 Barb. 488, 513, 514; Bowman v. Woods, 1 G. Greene, 441, 443; and cases cited in briefs of counsel. In Bowman v. Woods, supra, which was an action against a botanic physician, who had attended the plaintiff at childbirth, and had not removed the placenta for 36 hours after her accouchement, the defendant offered to prove that according to the botanic system of practice in medicine it was considered improper to remove the placenta; that it should be permitted to remain until expelled by efforts of nature. And it was held that such proof would be a defense; that "a person professing to follow one system of medical treatment cannot be expected by his employer to practice any other. While the regular physician is expected to follow the rules of the old school in the art of curing, the botanic physician must be equally expected to adhere to his adopted method. * * * The law does not require a man to accomplish more than he undertakes, nor in a manner different from what he professes." In the present case the evidence discloses that the plaintiff was suffering from an attack of appendicitis, and that the defendant, a Christian Scientist, who held himself out as competent to treat diseases, upon being applied to for treatment by the plaintiff, undertook for a reward to treat her. He told, in substance, that her disease was curable without a surgical operation, that drugs and medicines should not be used, and that he could and would cure her if she would take the treatment The plaintiff knew the treatment which the regular school of physicians would prescribe for appendicitis, and that the defendant was not a physician of that school, and did not practice according to its methods, but was a Christian Scientist and practiced according to the methods recognized by such healers. Under these circumstances a jury could not 'find that the defendant undertook to treat the plaintiff according to the methods of the regular school of physicians, or that he held himself out as possessing the knowledge and skill of the practitioners of that school. Such a finding would be contrary' to what the evidence shows the parties understood at the time of entering into the contract and the law will not imply an undertaking which a jury could not reasonably find from the evidence. Schoul. Bail. § 105. The plaintiff knew that she was not to be treated according to the methods of the regular school. Had she been an infant, non compos, or had never assented to Christian Science treatment, then the question whether the practice of Christian Science, as applied to the treatment of appendicitis, is so contrary to common sense and reason that it would be negligent for such a practitioner to undertake to treat the disease, might be open to consideration by a jury. But being a person of mature years, and having sought such treatment she cannot now complain that the method itself was improper. What the parties...