App. Div.] First Department, June, 1908. CONSTANTINE J. MACGUIRE, Respondent, v. MARGARET E. HUGHES, Appellant. First Department, June 5, 1908. Medical services rendered to married daughter-request by motherliability evidence-bias of witness. A person who is under no obligation to supply medical attendance for another does not become liable for professional services rendered by a physician by merely requesting him to attend the patient. Thus, a mother by asking a physician to attend her married daughter, with the acquiescence of the husband, does not become liable for the services rendered, in the absence of an express agreement to pay. Where, in an action to recover for professional services rendered to the defendant's daughter, a physician has given expert testimony as to the value of the plaintiff's services, it is error to refuse to allow the defendant on cross-examination to show that the witness, having sued the defendant for similar services, had failed to recover. Such evidence is admissible to show prejudice or bias of the witness. HOUGHTON and LAUGHLIN, JJ., dissented, with opinion. APPEAL by the defendant, Margaret E. Hughes, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 12th day of December, 1907, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 13th day of February, 1907, and also affirming an order of said City Court denying the defendant's motion for a new trial. Charles Strauss, for the appellant. John C. McGuire, for the respondent. INGRAHAM, J.: The action was brought to recover for medical services. The complaint alleges that between the 11th of November, 1903, and the 17th day of January, 1904, the plaintiff, as a physician, rendered certain professional services at the special instance and request of the defendant in and about the treatment of the defendant's daughter, Mrs. J. J. Bradley; that the services were reasonably worth the sum of First Department, June, 1908. [Vol. 126. $2,000; that the defendant has not paid the plaintiff the said sum or any part thereof, and demands judgment therefor. The answer denied the allegations of the complaint, except that the plaintiff is a physician and surgeon and the defendant has not paid the plaintiff the sum demanded or any part thereof. Upon the trial the plaintiff testified that in November, 1903, he was called on the telephone by the defendant, who inquired whether the plaintiff had been called to see her daughter, who was very ill; that the plaintiff told her that he had not been; that the defendant then told the plaintiff that Mrs. Bradley, her daughter Maude, was seriously sick; that she lived in One Hundred and Second street, and asked the plaintiff to go over to see her; that the plaintiff told her that he could not go over to see her daughter without the consent of her daughter's husband; that the defendant then said that she believed her son-inlaw objected to having the plaintiff called in; that when the plaintiff returned to his office on the twelfth of November he found the defendant and her son-in-law (husband of the defendant's daughter who was ill) waiting for him; that the defendant introduced her son-in-law to the plaintiff and asked the plaintiff in the presence of her son-in-law to go and see her daughter, when the plaintiff said that he was satisfied to go. Upon cross-examination as to the interview with Mr. Bradley he testified that he did not remember anything that Mr. Bradley said; that his attitude was one merely of acquiescence in the plaintiff's attendance; that he interpreted Mr. Bradley's presence as a consent of Mr. Bradley that the plaintiff should attend Mr. Bradley's wife and he attached no further importance to it than that Mrs. Hughes' action had been approved of; that Mrs. Hughes said nothing in the presence of Mr. Bradley, except that she asked the plaintiff if he would go and see her daughter, who was dangerously ill; that Bradley then left, saying that he would go ahead in the street cars; that after Bradley left the defendant repeated to the plaintiff what she said over the telephone with regard to her anxiety to have the plaintiff called in earlier in the case, and that the reason why he had not been called in was the objection on the part of her son-in-law; whereupon the plaintiff left his house in a carriage that the defendant had brought there and went with the defendant to Mrs. Bradley's residence; that when he got there he found that Mr. Bradley had already App. Div.] First Department, June, 1908. returned and the plaintiff made an examination of the patient; that after he had made the examination he said he would like to withdraw from the case and have nothing to do with it, that the condition of her daughter was particularly grave, dangerous and bad, that he did not wish to have anything to do with such a case; that in response to that the defendant said, "Doctor, you have been my friend; you have attended my family; you have attended my husband and our children, and I beg of you, for God's sake, don't desert Maude," and the plaintiff then consented to remain in the case; that the plaintiff continued in charge of the case and called in a consulting physician; that the patient was subsequently removed to a hospital and died in the following month. The plaintiff was aware that his patient was married to Bradley, that she was living with her husband, apart from the defendant and that it was at Mr. Bradley's house that he was asked to attend Mr. Bradley's wife. At the close of the plaintiff's case the defendant moved to dismiss the complaint upon the ground that the plaintiff had failed to prove a cause of action, which motion was denied. The defendant testified that Mrs. Bradley was her daughter and that her daughter's husband was John J. Bradley; that she had a consultation with Bradley on the subject of employing the plaintiff and as a result of that conversation Bradley went with the defendant to the plaintiff's house; that she introduced Bradley to the plaintiff who said to the plaintiff that he would like to have him come up and see his wife and gave the plaintiff his address; that the plaintiff wrote it down and said he would go right up with the defendant in the cab that she had there; that the only conversation as to the plaintiff's attendance upon Mrs. Bradley was with Mr. Bradley; that the defendant had several interviews with the plaintiff about her daughter's illness; that the plaintiff had been the defendant's family physician for a long time and she recommended him to Mr. Bradley for that reason; that there was no question of employment or payment, or as to who would be responsible for the services rendered, ever spoken of. Bradley, defendant's son-in-law, testified that he had engaged a Dr. Pidgeon to look after his wife; that the defendant seemed to be very much worried about the way things were, and she spoke about the plaintiff and asked him if he would have any objection to the plaintiff's com First Department, June, 1908. [Vol. 126. ing there; that Bradley said he had not and that he would go down and get the plaintiff, when the defendant said that she would meet Bradley at the plaintiff's office; that Bradley was introduced to the plaintiff and that Bradley asked the plaintiff to come to Bradley's house to see his wife, and the plaintiff came there; that he was able financially at the time of the illness of his wife and her subsequent death to pay any fair and reasonable charge which might be incurred in connection with her ailment, and that he was able at the time of the trial to pay such charges; that he never received any bill from the plaintiff and never refused to pay for the services rendered. Both sides having rested, the defendant renewed the motion to dismiss the complaint, which was denied. The court submitted the question to the jury who found a verdict for the plaintiff and from which the appellant appealed to the Appellate Term where it was affirmed, and then appealed to this court. The evidence from which plaintiff seeks to infer a promise of the defendant to pay for the services rendered by plaintiff is that defendant requested the plaintiff to attend her daughter who was seriously ill and she exhibited much anxiety about the condition of her daughter. The defendant had great confidence in the plaintiff who had been her family physician for many years and was anxious that he should see her daughter; that the doctor refused the request of the defendant, insisting upon the consent of the patient's husband and the defendant went to the office of the physician and as a result of what there happened the plaintiff consented to and did take charge of the case and rendered services for which a recovery is sought. The plaintiff refused to act upon any employment by the defendant and would only undertake the case with what he called the consent of the person who was legally responsible for the services that he was asked to render and who was the one to whom he would naturally look for payment had he united in the request. All that the defendant did was to urge plaintiff to act as her daughter's physician. There was nothing that was said by the defendant from which could be inferred a promise to be personally responsible for the services rendered, nor were services rendered to her or to one to whom she was under an obligation to provide a physician. The question, therefore, presented is whether a person is respon App. Div.] First Department, June, 1908. sible for merely requesting that a physician attend a patient for whom the person making the request is under no obligation to supply medical attendance. I think that question has been conclusively determined in the negative in this State and in England. The leading case in this State is Crane v. Baudouine (55 N. Y. 256). In that case the situation was much like the present. The patient was a daughter of the defendant who had passed her majority, was married and lived with her husband and her children separate from her father in a house of their own, although in that case the fact existed which does not exist here, that the patient had been brought from her own house to that of the defendant for the special purpose of having the patient under the immediate care and attention. of her mother during her sickness; but the court held that this did not impose upon the defendant any greater obligation than existed before; nor did it give ground for the law to imply a special obligation. In discussing the question generally, the court said: “It is true that particular acts will sometimes give rise to particular obligations, duties and liabilities. But the party whose acts are thus to affect him must be in such predicament as that those acts have, of legal necessity, a significance attached to them, at the time, which he may not afterward repel. It is true that a person may not avail himself of the benefit of services done for him without coming into an obligation to reward them with a reasonable recompense. But he cannot be said, in the meaning of the law, to avail himself of services as so done when they are not for his individual benefit, nor for that of any one for whom he is bound to furnish them. The acquiescence of one in the rendering of service or benefit to another, not entitled to call upon him therefor, is not equivalent to an acknowledgment that it is rendered at his request. So far as legal responsibility was concerned, the defendant, though the father of the patient, was a stranger to her and to her necessi ties. He could neither require of her, nor be required upon by her." The court then cited with approval the case of Boyd v. Sappington (4 Watts, [Penn.] 247), where it was held that a special request by a father to his physician to attend upon his son, then of full age, but lying sick at the father's house, raised no implied promise on the part of the father to pay for the services rendered; APP. DIV.--VOL. CXXVI. * * * 41 |