Gerlach v. Turner
Before: Beatty
Synopsis
Appeal — Review op Nonsuit — Error op Law — Specification in New-trial Statement. — A nonsuit may be reviewed as au error of law, if excepted to and specified as such in the statement on motion for new trial.
Physicians — Action for Medical Services — Husband and Wife — Invalid Divorce from Former Wife — Evidence — Hearsay — Non-suit. — In an action against a husband for medical services rendered to his wife, where it appears that the parties had been regularly married, and for a number of years afterward lived together as husband and wife, until they learned that the divorce of the husband from his former wife was invalid, but the only evidence as to the divorce was hearsay, called out on cross-examination, the conclusion that the parties were in fact husband and wife is not overcome, and the granting of a nonsuit is erroneous.
Id. — Services Rendered to Reputed Wife — Liability of Reputed Husband. — A party calling a physician to attend a person whom he represents to he his wife is liable therefor, and the fact that the parties are not in fact legally married does not release him from the obligation to pay for the physician’s services.
Id. —Estoppel by Conduct. — Where the conduct of the party calling the physician was such as to amount to an explicit representation that he was her husband, he is estopped from asserting its falsity after the physician has rendered services on the faith of such representation.
Id. —Notice to Physician of Invalid Marriage— Continuance of Employment. — The fact that the physician was informed toward the last of his visits, by both the reputed husband and the patient, that they were not married, does not release the reputed husband from his liability, where he fails to plainly and unequivocally put an end to the employment at the time he informed the physician of his true relation, toward the patient.
Beatty, C. J. — This is an action to recover $850 for medical services alleged to have been rendered at the special instance and request of the defendant in attending his wife, or reputed wife, Mary J. Turner, during her last illness.
In a former action against the administrator of Mary J. Turner for the value of the same services, the plaintiff was defeated by proof of her marriage to this defendant, and of an employment by him; from which it followed that he, and not her estate, was liable for the demand. (Gerlach v. Terry, 75 Cal. 290.)
Thereupon this action was commenced, in which the plaintiff has been nonsuited upon the ground that Mary J. Turner was not the wife of defendant, although so reputed, and that plaintiff’s services were rendered at her request, and solely upon the faith of her promise to pay for them out of her separate estate. In other words, the plaintiff has lost his suit this time because, in the opinion of the superior court, he did not prove a marriage or an employment by the reputed husband, while he lost it before, because such marriage and employment were proved. Certainly this is a hard case; but it is one that is legally possible. The defendant, not having been a party to the first suit, is not estopped by the decision therein made that he was the husband of Mary J. Turner, and contracted with the plaintiff; and if in this suit the contrary appears, the plaintiff cannot claim to recover merely .because in the former action the representative of Mary J. Turner succeeded in evading her just obligation by the false pretense that the defendant, as her husband, was the party bound for the debt.
[452]It will be necessary, therefore, in order to determine whether the nonsuit was properly granted, to confine our attention exclusively to the evidence produced by the plaintiff on the trial of this action.
Before considering the evidence, however, we will notice briefly a preliminary objection of counsel for the respondent, who contends, as we understand him, that the appellant has not specified the ruling of the court granting the motion for a nonsuit as an error of law, and consequently that it cannot be reviewed. (Schroeder v. Schmidt, 74 Cal. 460.) But in this contention counsel is evidently mistaken, for in fact the statement of the case not only shows that plaintiff duly and in time excepted to the order granting a nonsuit, but also distinctly specifies the ruling as an error of law, in both of which particulars it totally differs from the record in Schroeder v. Schmidt, 74 Cal. 460.
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