Gardner v. Tatum (1889) · DecisionDepot

Gardner v. Tatum

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Nov 30, 1889 No. No. 11902Published

Before: Fox, Paterson

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Holding. A contract for medical services rendered by a physician who has not yet obtained the required statutory certificate is void as against public policy, and the court erred in admitting evidence regarding experimental procedures and the treatment results of other physicians.

Issues

Whether a contract for medical services is void if the physician lacks the required statutory certificate at the time of service.
Whether the trial court erred in conditioning the denial of a new trial on the plaintiff's remission of a portion of the verdict.
Whether evidence of experimental skin-grafting and the treatment results of other physicians was admissible.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The court admitted evidence as to the value of services for which plaintiff was not under any circumstances entitled to recover.”

Synopsis

Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion of the court.

Opinion — Paterson

Paterson, J. Plaintiff, who is a physician and surgeon, was called in by defendants, and began to treat their [371]employee, Cook, on March 8,1883. He continued to visit the patient until October 2,1883. On September 24th he made a demand upon defendants for the sum of $2,386. Thereupon defendants notified him that they considered his charges exorbitant, and that they would not be responsible for any further services in behalf of Cook. He then brought this action to recover the sum of $2,406, alleged to be the reasonable value of his services. The' jury found a verdict in his behalf for the sum of $1,800, and judgment was entered for that amount, and $318 costs and disbursements. The defendants moved for a new trial, specifying several errors of law, and claiming that the verdict was excessive. The defendants convinced the learned judge who heard and decided the motion that the verdict was excessive, and not warranted by the evidence, and he thereupon caused to be entered a conditional minute order, of which the following is a copy: “The motion for a new trial herein will be denied, provided that plaintiff, within thirty days from this date, offer to remit the sum of eight hundred dollars from the amount of the verdict herein; provided, also, that the defendants shall agree to accept said verdict and judgment so modified as a finality, said offer to remit not to be binding upon the plaintiff unless accepted by defendants as a finality. Said motion for a new trial to be granted unless said offer to remit by plaintiff be so made.”

In accordance with the order, plaintiff filed an offer to remit the sum of eight hundred dollars from the amount of the verdict, provided the defendants should accept the verdict and judgment so modified as a finality. The defendants elected not to accept the terms of the order, whereupon the court made an order denying the motion in the following language: “It appearing that plaintiff has offered to remit said sum as directed, and within the time directed, and no error appearing in the record, and the verdict as rendered being sustained by a pre[372]ponderance of evidence, unless as to the amount of the verdict, it is hereby ordered that the motion for a new trial be and the same is hereby denied.”

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Dissent — Fox

Fox, J., dissenting. I dissent. I do not think that there is anything in the record to justify the conclusion that the court below thought the verdict excessive. The order recited in the leading opinion was an unusual one, but taking the whole record together, the broadest construction that to my mind can be given to it is, that the court below thought that under the circumstances of the case the verdict was a hardship to the defendants, and on the other hand the delays of a new trial and possible appeal would also work a hardship to the plaintiff, and that it would be better for both parties to settle [376]the matter on the basis of the order, which it gave them an opportunity' of doing. But the very terms of the order imply that the court did not consider the defendants entitled to that reduction as a matter of right or of law, and the weight of the evidence is against any such implication. On the contrary, the preponderance of the evidence is in favor of a much larger amount than that allowed by the verdict. If the amount of the bill was a surprise to the defendants, it was in a large degree their own fault, in utterly neglecting to ascertain the character of the case which they had committed to plaintiff’s care; and to make some arrangement as to the extent of the charge to be made. The evidence shows that the case was one attended with great difficulty, requiring, great skill and constant care, and that it was attended with such success as had made it phenomenal in that class of surgical cases.

As to the ¡mint made on the requirements of the “act to regulate the practice of medicine,” and the act supplementary thereto, the inhibition of the statute ran against the person, and not against the business. As was said by the court in Aitkin v. Blaisdell, 41 Vt. 666: “If a man engage in the kind of business referred to, he is engaged in a legal business, whether he has a license or not. If he has no license, he has no legal right to do it, and subjects himself to the penalty. The law, we think, was intended to operate upon the person, and not upon the business.” In this case the plaintiff possessed every qualification required by the law, and not only proved it to the entire satisfaction of the board of examiners, but also paid his license fee, before entering upon this employment, and only failed to receive the license at the time because of a failure of the board to hold a meeting in time to grant it earlier. It was not his fault that the license was not in his possession.

The cases of Ladda v. Hawley and Swanger v. Mayberry, cited in the leading opinion, are both cases of contract [377]for stealing timber from the government of the United States,—a business unlawful per se,—and the judgments of the court refusing to enforce the contracts have no bearing in this case. I do not, therefore, think the court erred in refusing the instruction asked by defendants. Neither does it appear to me that the defendants were injured by the rulings of the court in the admission of, evidence.

xn my opinion the judgment should be affirmed, but if it be determined that it should be reduced by disallowing for the service rendered before the plaintiff received his license, it is better to make that modification than to reverse the judgment and remand the case for a new trial. The record shows the number of visits made and operations performed, and the charge made for each, and it seems to me that there is no substantial difficulty in the way of making a deduction for the first nine days of that service, which shall conform to the justice of the case, if it shall be determined that such deduction ought to be made, it being understood and apparent that the jury have allowed just about seventy-five per cent of the whole charge, and that the evidence of every surgeon called in the case puts the value at more than was charged.

Thornton, J., also dissented.

liehearing denied.

AI Brief

Synopsis

Opinion — Paterson

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Dissent — Fox

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