The result of the authorities seems to be that, without the aid of a statute, an expert cannot be compelled to bestow his skill and professional experience gratuitously upon any party, for his skill and experience are his individual capital and property.
CHAPTER III. WHO SHOULD PAY THE DOCTOR.
If Smith says to Brown, a medical man, “Attend upon Robinson, and if he does not pay you I will;” that being a promise to answer for a debt of Robinson’s, for which he is also liable, the guarantee is only a collateral undertaking, and, under the Statute of Frauds, must be in writing and signed by Smith, or some other person thereunto by him lawfully authorised, in order to be binding upon him. But if Smith says to Dr. Brown, absolutely and unqualifiedly, “Attend upon Robinson, and charge your bill to me,” or “I will pay you for your attendance upon Robinson;” then the whole credit being given to Smith, no written agreement is necessary to enable the doctor to recover the amount of his account from him, since it is absolutely the debt of Smith ([63]).
Where a person calls at the office of a physician, and, he being absent, the visitor leaves his business card with these words written on it, “Call on Mrs. Jones, at No. 769 High Street,” handing it to the clerk in attendance, with the request that he would give it to the doctor and tell him to go as soon as possible; this caller becomes liable to pay the doctor’s bill for attendance upon Mrs. Jones in pursuance of such message. Yet Mrs. Jones, if a widow, may also be liable; for one who acquiesces in the employment of a physician, and implies, by his or her conduct, that the doctor is attending at his or her request, is responsible for |33| the value of his services. If Mrs. Jones is living with her husband, or, without her fault, away from him, the doctor has still another string to his bow, and may recover the amount of his bill from Mr. Jones; for the rule is, that a husband must pay his wife’s doctor’s bills. Of course the doctor cannot make all three pay ([64]).
Long since, Park, J., was clearly of the opinion that if a mere stranger directed a surgeon to attend a poor man, such person was clearly liable to pay the surgeon ([65]). Yet, in some cases in the United States, it has been held that the man who merely calls the doctor is not bound to pay him. When, for instance, in Pennsylvania, a son of full age, when living with his father, fell sick, and the father went for the doctor, urging him to visit his son. Afterwards the physician sued the parent. The Court said this was wrong, that he should have sued the son, as the father went as a messenger only, that the son, who had the benefit of the services, was the responsible person; and remarked that it was clear that had the defendant been a stranger, however urgent he may have been and whatever opinions the physician may have formed as to his liability, he would not have been chargeable without an express promise to pay, as, for instance, in the case of an inn-keeper or any other individual whose guest may receive the aid of medical service. A different principle, the Court considered, would be very pernicious, as but very few would be willing to run the risk of calling in the aid of a physician where the patient was a stranger or of doubtful ability to pay. This was in 1835 ([66]). And, in Vermont, one brother took another, who was insane, to a private lunatic asylum and asked that he (the insane one), might be taken in and |34| cared for. This was done. In course of time the doctor sued the sane one for his bill, but the Court would not aid him in the matter, saying, “He is not liable unless he promised to pay” ([67]).
In the case of Mr. Dodge, above referred to, the Court said, “He might very readily have screened himself from all liability, by simply writing the memorandum on a blank card, or by adding to that which he wrote on his own card something that would have apprised the doctor of the fact that he acted in the matter for Mrs. Jones, as her agent.”
The reporter did not approve of this decision, and so appended the following graphic note: “Let us see how this thing works. We will take as an illustration an almost every-day occurrence arising in the country. A. B. is taken suddenly and seriously ill in the night time, and sends to his neighbour, C. D. living in the next house to his, to have him go after the doctor as soon as he can, for he is in great pain and distress. C. D. jumps out of bed without hesitation, and hastily dresses himself, and goes out to his barn and takes a horse from the stable, and not waiting to put on a saddle or bridle, jumps on to the horse with the halter only, puts him at full speed for the doctor’s office, some two or three miles distant. On arriving there he finds the doctor absent from home, but his clerk is there, and C. D. at once says, ‘Tell the doctor to call on A. B. who has been taken suddenly sick; tell him to come as soon as possible.’ In accordance with this message the doctor calls upon A. B., and prescribes for and attends him professionally for several days. After a reasonable time the doctor sends in his bill to A. B. and it not being paid as soon as the doctor desires, he calls on C. D. and requests him to pay the bill. C. D. with perfect astonishment, asks why he is to pay. |35| The doctor informs him that he made himself liable to pay the bill because, when he delivered the message, he did not tell the clerk that he came for the doctor by the request of A. B. nor that he acted as agent of A. B. in delivering his message. Well, says C. D. the fact was I did go at the request of A. B. and merely acted as his agent in delivering the message, and I will swear to these facts if necessary. The doctor insists that it will do him no good if he should give such testimony, for the law is settled on that point, as just such a case has recently been decided in New York under just such a state of facts, where the jury, in the justice court, found a verdict for the doctor for the amount of his bill, and, on appeal by the defendant to the general term of the New York Common Pleas, that court unanimously sustained the verdict of the jury, and affirmed the judgment of the court below. Well, says C. D. ‘If that is the law I think I will wait awhile before I go after a doctor again as an act of neighbourly kindness.’” This case was decided as late as March, 1873.
A wife has implied authority to bind her husband for reasonable expense incurred in obtaining medicines and medical attendance during illness; but this implied authority is put an end to if she commits adultery while living apart from her husband, and there has been no subsequent condonation; or, if she leaves her husband’s home of her own accord and without sufficient reason, and the fact has become notorious, or the husband has given sufficient notice that he will no longer be responsible for any debts that she may incur ([68]). If a husband turn an innocent wife out of doors without the means of obtaining necessaries, it is a presumption of law, which cannot be rebutted by evidence, that she was turned out with the authority of her husband to pledge his credit for necessaries, and in such a case |36| medical attendance will be considered as one of the primary necessaries ([69]). A married woman’s misconduct does not exonerate the husband from paying a doctor whom he requests to attend her ([70]).
Although the law requires the husband to furnish the wife with all necessaries suitable to his condition in life, including medical attendance in case of sickness, still it gives him the right to procure these necessaries himself and to decide from whom and from what place they are to come. If a physician attends a wife whom he knows to be living separate and apart from her husband, he ought to enquire whether she has good cause for so doing; for if she has not he cannot make the husband pay the bill; and it has been held that it devolves upon the doctor to show that there was sufficient cause for the wife’s separation ([71]). The employment of a physician by a husband to attend his sick wife, presumably continues throughout the illness; and the mere fact that the wife is removed, with the husband’s consent, from his home to her father’s, will not enable him to resist payment of the doctor’s bill for visits paid to her at the father’s ([72]).
Notwithstanding the law’s desire not to favour any particular school, a quack’s bill was thrown out where the services were rendered without the husband’s assent. This was done in a case where a doctor was in the habit of putting a woman into a mesmeric sleep, she thereupon became a clairvoyant and prescribed the medicines which the doctor furnished, and for these he sued. The Judge said:—“The law does not recognize the dreams, visions or revelations of a woman in mesmeric sleep as necessaries for |37| a wife for which the husband, without his consent, can be made to pay. These are fancy articles which those who have money of their own to dispose of may purchase if they think proper, but they are not necessaries known to the law for which the wife can pledge the credit of the absent husband” ([73]).