Stanton v. Rushmore
| Full Citation | Stanton v. Rushmore, 112 N.J.L. 115, 169 A. 721 (N.J. 1934) |
| Decision Date | 05 January 1934 |
| Citation | 169 A. 721 |
| Docket Number | No. 108.,108. |
| Parties | STANTON v. RUSHMORE. |
| Court | New Jersey Supreme Court |
Appeal from Supreme Court,
Action by Nathaniel B. Stanton against Samuel Rushmore. Judgment for plaintiff was affirmed by the Supreme Court (166 A. 707, 11 N. J. Misc. 544), and defendant appeals.
Affirmed.
Kunzman & Kunzman, of Plainfield, for appellant.
Joseph I. Bedell, of Plainfield (W. S. Angleman, of Plainfield, of counsel), for respondent.
The question presented is whether a professional man may enter into a special contract at an agreed compensation for attendance as a witness and giving expert testimony upon the facts presented for determination in the trial of a cause.
Plaintiff below was a physician practicing medicine and surgery in Plainfield, and, according to his testimony, was asked to attend at the trial of a case in which the defendant, Rushmore, and his wife were parties. The doctor had observed the condition of Mrs. Rushmore, and his evidence was desired to determine whether there were evidence of blows or bruises on her body or anything in her condition to lead him to believe that she had been subjected to violence or physical mistreatment. The doctor said he was not anxious to be a witness, that he was in hospital service, his time was not his own, and that nothing further developed at the first communication between the parties. Later he was formally subpoenaed by the defendant. This angered the doctor, and in response to telephone inquiry the defendant called and assured him that he would compensate him for his time and pay him the amount that the doctor might receive for a gall bladder or appendicitis operation. The witness in response attended on the trial, gave expert testimony as requested, and sent his bill to the defendant for his services in the amount called for by the agreement. This not being paid, the present action was brought, and judgment for the plaintiff resulted. The doctor further testified that his observation of the wife was from a professional standpoint and that his answers were made on that basis.
It is quite obvious that the attendance and testimony of the plaintiff were sought from him as an expert; witness giving not alone facts of his observation of the wife, but expressing his professional judgment as to the condition he found and its cause. This being true, the question is squarely presented (for the first time in this state, it is asserted by appellant) whether a contract for such services is void because of public policy.
Numerous authorities are found in other jurisdictions, some holding in the affirmative and some in the negative. In Maine and Massachusetts in Gordon v. Conley, 107 Me. 286, 78 A. 365, 33 L. R. A. (N. S.) 336, and Barrus v. Phaneuf, 166 Mass. 123, 44 N. E. 141, 32 L. R. A. 619, it was held in favor of the validity of such contracts. Cases in other jurisdictions hold to the contrary. This court is therefore at liberty to...
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...or reflection. See Ondis v. Pion, 497 A.2d 13 (R.I.1985); People v. Thorpe, 296 N.Y. 223, 72 N.E.2d 165 (N.Y.1947); Stanton v. Rushmore, 112 N.J.L. 115, 169 A. 721 (1934). ¶30 Other courts, including this court nearly 90 years ago, have adopted a narrow qualified privilege for experts. Unde......
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