In England, it was, until 1869, considered that a parent’s duty to furnish necessaries for an infant child was a moral and not a legal one, so that he was not liable to pay for medicines or medical aid furnished to his child without some proof of a contract on his part either expressed or implied. And this still is the view where the child is over fourteen. The rule of law varies in the different States of the Union. In most of those in which the question has come before the courts the legal liability of the parent for necessaries furnished to the infant is asserted, unless they are otherwise supplied by the father; and it is put upon the ground that the moral obligation is a legal one, and some of the courts have declared this quite strongly. In other States the old English rule has been held to be law, and agency and authority have been declared to be the only ground of such liability. The authority of the infant to bind the parent for medical aid supplied him will be inferred from very slight evidence ([74]). But a contract to pay will not be implied when the infant has been allowed a sufficiently reasonable sum for his expenses ([75]). Where the services have been rendered with the parent’s knowledge and consent, he will generally have to pay for them. A boy left home against his father’s will, and refused to return at his parent’s command. Being seized with a mortal illness he did at last come back. His father went with him to a |38| physician to obtain medical advice, and the doctor afterwards visited him professionally at his father’s house. No express promise to pay was proved, nor had the father said he would not pay. The Court held the father liable to pay the doctor’s bill ([76]). And in an English case, where a father had several of his children living at a distance from his own house under the protection of servants, it was held that if an accident happened to one of the children he was liable to pay for the medical attendance on such child, although he might not know the surgeon called in, and although the accident might have been received through the carelessness of a servant ([77]).
By a recent English statute ([78]), when any parent shall wilfully neglect to provide adequate food, clothing, medical aid, or lodging for his child, in his custody, under the age of fourteen, whereby the child’s health shall have been, or shall be likely to be, seriously injured, he shall be guilty of an indictable offence punishable by imprisonment. Charles Downes was the two-year-old child of a member of the sect of Peculiar People. These people never call in medical aid or give medicines: to do so would be contrary to their religious opinions; but if any is sick they call in the elders of the church, who pray over him, anointing him with oil in the name of the Lord; then they hope for a cure, as they have thus literally complied with the directions in the 14th and 15th verses of the 5th chapter of the Epistle of St. James. This child was ill for months; the usual course was pursued by his father; no medical aid was obtained, although easily obtainable. The illness was misunderstood, and, although he was taken care of and well supplied with food, the child died. The father was indicted for manslaughter, and the |39| jury found that the death was caused by the neglect to obtain medical assistance, that the father bona fide (though erroneously) believed that medical aid was not required, and that it was wrong to use it. The Judge entered a verdict of guilty, and the Court held—under this statute—that a positive duty was imposed upon the father to provide adequate medical aid when necessary, whatever his conscientious scruples might be, and that that duty having been wilfully neglected by the prisoner, and death having ensued from that neglect, he was properly convicted of manslaughter ([79]).
It had been held by Pigott, B., in a case against these same Peculiar People, and also by Willis, J., that, at common law, there was no legal duty upon a father to employ a physician for his sick child ([80]).
It is not enough to shew neglect of reasonable means for preserving or prolonging the child’s life, to convict of manslaughter, it must be shewn that the neglect had the effect of shortening life. It will not do merely to prove that proper medical aid might have saved or prolonged life and would have increased the chance of recovery, but that it might have been of no avail ([81]). In this case the father, perhaps, might have been convicted of neglect of duty as a parent, under the statute (per Stephen, J.).
Medicines and medical aid are necessaries for which an infant may legally contract, and for which he can render himself liable. In Massachusetts, it was held that he would not be liable merely because his father was poor and unable to pay ([82]). |40|
A master is not bound to provide medical assistance for his servant, but the obligation, if it exists at all, must arise from contract; nor will such a contract be implied simply because the servant is living under the master’s roof, nor because the illness of the servant has arisen from an accident met with in the master’s service ([83]). But where a servant left in charge of her master’s children was made ill by suckling one of the children, and called in a medical man to attend her, with the knowledge and without the disapprobation of her mistress, it was decided that the doctor could make the father and master pay ([84]). And a master is bound to provide an apprentice with proper medicines and medical attendance ([85]).
In England, when a pauper meets with an accident, the parish where it occurs is usually liable for the surgeon’s bill. If, however, the illness of the pauper arises from any other cause than accident or sudden calamity, the parish in which he is settled is under legal liability to supply him with medical aid, although he may be residing in another parish. But all these questions with regard to paupers are determined according to the poor laws of the different countries ([86]).
It has frequently happened that when a railway passenger or employee has been injured by a collision or accident, and some railway official has called in a doctor, the company has afterwards refused to pay the bill; and the courts have declined to make them do so, unless it be shown that the agent or servant who summoned the medical man had authority to do so. It has been held that neither a guard, nor the superintendent of a station, nor the engineer of the train in which the accident happened, had any implied authority, as incidental |41| to their positions, to render their companies liable for medical services so rendered ([87]). The Court of Exchequer said, “It is not to be supposed that the result of their decision will be prejudicial to railway travellers who may happen to be injured. It will rarely occur that the surgeon will not have a remedy against his patient, who, if he be rich, must at all events pay; and if poor, the sufferer will be entitled to a compensation from the company, if they by their servants have been guilty of a breach of duty, out of which he will be able to pay, for the surgeon’s bill is always allowed for in damages. There will, therefore, be little mischief to the interests of the passengers, little to the benevolent surgeons who give their services.” But, in England, it has been decided that the general manager of a railway company has, as incidental to his employment, authority to bind his company for medical services bestowed upon one injured on his railway. In Illinois, a similar decision was given as to a general superintendent, although in New York judgment was given the other way ([88]).
If an accident happen to a stage coach by which a passenger’s leg is broken, or his human form divine is otherwise injured, the coachman has no authority to bind his master by a contract with a surgeon to attend to the injury; nor if a lamp-lighter, by neglect, burn any person, has he, or any officers of the gas company, power to bind the company by a contract for the cure of the injured person ([89]). If ordinary employees had such authority, then every servant who, by his negligence or misconduct, had caused injury to an individual, would have an implied authority to employ, on behalf and at the expense of his employer, any person he thought fit to remedy the mischief.