Naffziger v. Illbeg

TYLER, P. J.

Action by a physician to recover the reasonable value of professional services. The complaint alleges that plaintiff at the special instance and request of defendant performed the alleged services for the benefit of defendant’s nephew. It is claimed that the work done was of the reasonable value of $1,500; that the sum of $500 had been paid on account thereof, leaving a balance of $1,000, for which sum judgment is prayed.

The answer admits that the services were rendered, but denies that they were reasonably worth the amount claimed

[524]

or that they were performed at the special instance and request of defendant. As a further answer and defense defendant pleaded the statute of frauds, claiming that the action was an attempt to hold the defendant for the debt of another without a memorandum in writing. The trial court found in favor of defendant. It is plaintiff’s contention that the findings to the effect that the services were not rendered at the request of defendant, and that if any promise was made it was not in writing and was therefore invalid under subdivision 2, section 1973, of the Code of Civil Procedure are contrary to and not supported by the evidence. For a full understanding of the ease a somewhat extended review of the evidence becomes necessary. Defendant was an uncle of one Tom Arslan. In 1922 Arslan came from Fresno to the University of California Hospital at San Francisco to consult and be treated for a tumor by Dr. Naffziger, a brain specialist. He was accompanied by his brother Harry Arslan. Upon examination it was discovered that an immediate operation was necessary. Plaintiff first performed a decompression operation for relief of pressure. A major operation was necessary and plaintiff discussed with the brothers the question of the payment of his fees. He was assured by them that they were responsible, but that their uncle would pay the same, but the doctor was cautioned by them not to mention the fact to their relative that they had used his name. Immediately after entering the hospital the patient procured the services of a private nurse, and at his request she wrote to his uncle at Fresno-. The exact contents of this letter do not appear, as neither the nurse nor defendant could remember the particular language used. The nurse testified that it informed defendant of the condition of his nephew and requested that he become responsible for the payment of plaintiff’s fee. Defendant, on the other hand, testified that while he did not remember the exact wording of the letter, he considered it a mere request to obtain his consent as a relative of the patient to the serious operation contemplated. In answer to this communication defendant wrote to plaintiff as follows: “I received a letter from Miss Keeseeer, nurse for Tom Arslan, who advised that you are waiting to hear from me. If an operation is necessary, please have it done right away. Tours very