First Department, June, 1908. [Vol. 126. and the case of Veitch v. Russell (3 Ad. & Ell. [N. S.] 928), where it is said: A physician attends in every case on request; that fact alone is not sufficient for the inference of a special contract; and the court in the Crane case then proceeds: "It was the duty of the plaintiff to know or to learn the true legal status of the patient, and what were her true legal relations to the defendant; and he cannot rely upon any seeming legal and necessary dependence of her upon him." The Crane case seems to have been followed, without question, both in this State and other States. (See Meisenbach v. Southern Cooperage Co., 45 Mo. App. 232; Dorion v. Jacobson, 113 Ill. App. 563. See, also, Smith v. Watson, 14 Vt. 332.) The principle established in these cases, which is a simple restatement of the common law, is that a simple request to perform services for another to whom there exists no obligation of any kind to furnish the services does not create an implied obligation to pay for such services by the person making the request, and that a promise to pay cannot be implied from a simple request that the services be rendered; and I apprehend that this principle is not peculiar to the relation of a physician and his patients, but extends to all cases where services, personal in their character, are rendered by one person to another. There was in this case no express promise by the defendant to pay the plaintiff for his services to the defendant's daughter. There was great anxiety about the daughter and her condition shown by the defendant, and an ardent desire that the daughter should receive the benefit of the plaintiff's professional skill and experience. The plaintiff knew that the patient that he was asked to attend was married and living with her husband, and he refused to attend the patient without her husband's consent. The husband's consent was obtained, and there then arose the obligation on the part of the husband to pay for the plaintiff's services to his wife. When that consent was obtained the plaintiff at once consented to see the patient. He exacted no promise from the defendant as to compensation; nor was there anything said from which there could be implied an understanding that the services were to be rendered for the defendant and not for the patient and her husband. required the consent of the patient's husband to accept the employment and continued in charge of the case to the end under such consent. There was, therefore, nothing, as I view it, in this case He App. Div.] First Department, June, 1908. which raised a presumption that the plaintiff's services were rendered to the defendant, or that the defendant promised to pay for them, and I think it was error to deny the motion to dismiss the complaint. There was also an error committed on the trial to which attention should be called. The plaintiff had called an eminent physician in consultation, and this physician was called as a witness to testify as to the value of the plaintiff's services. He testified that the services were worth $2,000, the amount of the plaintiff's bill. Upon cross-examination he testified that he rendered a bill against the defendant for his services which she refused to pay and he brought suit against her. He was then asked whether he failed to recover, which was objected to by the plaintiff. The court characterized the question as absolutely improper and stated to counsel that he should know better. Counsel stated that it was asked upon crossexamination as to the bias of the witness against the plaintiff, and the court allowed the defendant an exception. I think this question was proper and that the criticism of the defendant's counsel by the court was unjustified. The witness was called as an expert. He had testified as to the value of the plaintiff's services, fixing the value at the same amount fixed by the plaintiff and which was the amount sued for, and it was proper to allow upon cross-examination any question to show that the witness had a prejudice or bias against the party against whom he was testifying. This was especially important in relation to testimony of this character which is not as to the existence of a fact about which the witness could be presumed to testify correctly, but about a question of opinion in relation to the value of services which is very liable to be largely influenced by feelings of antagonism or friendship. The judgment appealed from must be reversed and a new trial ordered, with costs to the defendant to abide the event. MCLAUGHLIN and Scorr, JJ., concurred; HOUGHTON and LAUGHLIN, JJ., dissented. HOUGHTON, J. (dissenting): I cannot assent to the proposition that the plaintiff did not make a prima facie case of hiring by the defendant. I assume it must be conceded to be the law that a physician is entitled to recover First Department, June, 1908. [Vol. 126. compensation for his services and that his hiring need not be express but may be inferred from an implied contract; and also that a parent of a married daughter may, if he choose, contract with a third party to perform services or furnish necessaries for her. The only principle to observe in determining whether the parent is liable to pay in case of necessaries like medical attendance, is the presumption that the contract was made by the parent in behalf of the person primarily liable, which in the present case was the husband of the daughter. The moment that presumption is overcome the contract of hiring must be given effect and the parent must pay. * The testimony of the plaintiff is that the defendant telephoned to him asking if he had been called to see her married daughter who was very ill, and upon his replying that he had not, asked if he would go and see her, and the plaintiff replied that he could not go without the consent of the daughter's husband. Testifying further as to conversations, he said: "Mrs. Hughes said further to me that she believed her son-in-law objected to having me called in; ** that! the objection made by her son-in-law to the calling in of myself into the case had alarmed her." This conversation was about the first of November, and matters seem to have rested as they were for ten or twelve days, when on the evening of the twelfth of November the plaintiff on returning to his office found the defendant and her sonin-law waiting for him. The son-in-law was introduced and the defendant, in his presence, asked the plaintiff if he "would go up and see her daughter, that she was dangerously ill." The husband left, the defendant remaining in the office to take the plaintiff to her daughter in the carriage in which she had come, which she did. While the plaintiff was preparing to go with her "she repeated what she had said on the telephone with regard to her anxiety to have me called in earlier in the case, and she repeated then that the reason why I had not been called in was the objection on the part of her son-in-law." After the plaintiff had made an examination of the condition of the daughter he told the defendant that he would like to withdraw from the case because of the condition in which he found the patient. In response 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." Thereupon the plaintiff con App. Div.] First Department, June, 1908. sented to continue his treatment of the daughter. The next day, the condition of the patient becoming worse, the plaintiff advised with the defendant and told her that he thought it advisable to call in a consulting physician; that she told him to spare no pains and to do everything possible for her daughter. On cross-examination. the plaintiff is more specific. He says that the conversation with the husband consisted merely of an introduction, and that in his presence the defendant said "this is Mr. Bradley, my son-in-law, and I want you to come up and see my daughter," and that Bradley said nothing and immediately departed. It is perfectly manifest from what took place that the defendant brought her son-in-law to the plaintiff's office, not for the purpose of having him solicit the plaintiff to attend his wife, the defendant's daughter, but simply for the purpose of showing the plaintiff that the son-in-law had withdrawn his objections to the defendant having the plaintiff treat her. The plaintiff testifies that he so understood the interview, and that nothing was said which could lead him to believe that the husband had come there to engage his services, or to hire him, but that as he assumed his only purpose was to evidence his consent that his mother-in-law might employ him. The defendant denied that she asked the plaintiff to attend her daughter, and said that at the interview with plaintiff at his office the son-in-law and not herself requested that he should do so. On cross-examination she admits that she called him on the telephone, but says she simply asked him if he had been called and said nothing further, and that she did not regard her daughter as seriously ill and never asked the plaintiff what her malady was, or expressed any wish that he continue to treat her. The jury very properly disbelieved her story and credited that of the plaintiff. The case of Crane v. Baudouine (55 N. Y. 256) appears to be curiously misunderstood. All that case holds, or that any case in our jurisdiction dealing with the right of a physician to recover for services holds, is that expressions of natural anxiety and solicitude concerning treatment of a sick relative or friend, or the summoning of a physician by a stranger as an act of humanity, shall not be tortured into a contract of employment. Veitch v. Russell (3 Ad. & Ell. [N. S.] 928) cannot be regarded First Department, June, 1908. [Vol. 126. as an authority, because that decision was put expressly upon the ground that the compensation of a physician was merely honorary, and that he had no legal right to recover in the absence of an express contract. As an introduction to his opinion Lord DENMAN says: "It must be assumed as clear that physicians and counsel usually perform their duties without having a legal title to remuneration." In Boyd v. Sappington (4 Watts [Penn.], 247) the judgment below was reversed on the ground that the father was not permitted to show that the son for whom the physician's services were rendered had property of his own and was doing business for himself, and this upon the ground that it went to the probability of the doctor having rendered services on account of the son alone. The meager authorities on the subject are reviewed in Foster v. Meeks (18 Misc. Rep. 461), and it is there held that one who requests a physician to attend another person, without disclosing that he is acting only as agent, becomes liable to pay the physician's bill. To the same effect is Bradley v. Dodge (45 How. Pr. 57). The evidence in the present case cannot be tortured into proving that the defendant hired the plaintiff on behalf of her daughter's husband. He had his own physician in attendance and objected to calling the plaintiff, and finally yielded to the importunities of the defendant and permitted her to call the doctor she desired. FOLGER, J., in Crane v. Baudouine (supra), which is relied upon for a reversal of this judgment, expressly states that a physician may recover upon an implied contract, and that an express contract is not a necessity. In that case the referee had found against the physician and the General Term had reversed the judgment, and the Court of Appeals simply held that the referee was best qualified to pass upon the question of fact as to whether there was a hiring or not in view of the defendant's denial of employment, and that the evidence was not so preponderating in plaintiff's favor as to authorize the overturning of the decision. Το my mind such is the situation in the present case, and the jury having found in favor of plaintiff its verdict should not be disturbed. There are no errors of law requiring a reversal. Plaintiff's witness, Dr. Cleveland, had been fully interrogated as to his having |