BURGESS, P. J.
On the 24th day of March, 1896, plaintiff instituted suit before Theo. S. Case, a justice of the peace of Jackson county, against the defendant, R. H. Field, upon an account for one hundred and sixty dollars for services rendered defendant by plaintiff, as a physician. Plaintiff recovered, before the justice, judgment for one hundred and sixty dol[61]*61lars, the full amount of his claim. Defendant then took the case, by appeal, to the circuit court of Jackson county, where, upon a trial de novo before the court and jury, plaintiff again recovered judgment for one hundred and sixty dollars. From this judgment defendant appealed to the Kansas City Court of Appeals, when the judgment was reversed and the cause remanded for further trial. Thereafter, on the 17th day of November, 1901, the case was again tried in said' circuit court, and plaintiff recovered a verdict and judgment in the sum of fifty dollars. After unavailing motions for a new trial and in arrest of judgment, plaintiff appealed from this judgment to the Kansas City Court of Appeals, and thereafter, on motion of plaintiff, that court transferred the cause to this court, upon the ground that the court had no jurisdiction of the appeal because of there being a constitutional question involved.
The facts are substantially as follows:
The plaintiff was a practicing physician, making a specialty of diseases of the nose, throat and ear. He had treated defendant in the year 1890, and his bill for that service was paid by defendant. Defendant applied to him again for treatment in the month of October, 1892. The trouble defendant was suffering from in 1890 was different from that with which he was troubled in 1892. In the first instance he had an enlargement or thickening of the mucous membrane or lining of the nasal cavity. The plaintiff cured him, and defendant was not back to see him again until 1892, when plaintiff found that he was suffering from inflammation of the middle turbinate bone, together with inflammation of the frontal sinus. Plaintiff, hoping to relieve the inflammation, and successfully treat the disease without an operation, gave defendant the treatment sued for, telling the defendant that he could not state whether a cure would be worked, and declined to guarantee that such could be effected. It ap[62]*62pears, from plaintiff’s testimony, that the defendant, was benefited; that the case at times grew better; that the treatment administered to relieve the congestion in the canal leading to the sinns was successful, but that, from time to time, defendant would catch cold and violently blow his nose, thus keeping up the inflammation which tended to close the connection between the sinus and the nasal cavity.
Defendant’s side of the case was presented by his. own testimony and that of Dr. Leroy Dibble. The propriety and correctness of the treatment administered by plaintiff was supported by several physicians, and defendant’s expert, Dr. Dibble,- testified to the effect that plaintiff had been pursuing correct practice in endeavoring to work a cure without performing an operation. There was no contention on the part of defendant that he had'been in any way injured by plaintiff’s treatment, but he did testify that he did not think he was benefited thereby.
On behalf of the plaintiff the court instructed the jury as follows:
‘ ‘ 1. If you find and believe from the evidence that the plaintiff rendered the services -sued for to the defendant and at his request, and that no price was fixed or agreed upon, then the law implies a promise from the defendant to pay the plaintiff for such services what the same are reasonably worth, if anything; and this is true without regard to whether the treatment of plaintiff by defendant was beneficial to defendant.
“2. If you find and believe from the evidence that the plaintiff rendered the professional services to defendant as claimed by the plaintiff, then plaintiff is entitled to recover what you may find and believe from the evidence such services were reasonably worth, if anything, according to the usual charges of the medical profession in this vicinity; and this is true, although the services rendered may not have produced [63]*63a cure of the disease with which plaintiff was suffering.
“3. If you find and believe from the evidence that the plaintiff rendered the professional services to defendant as claimed by plaintiff, then the plaintiff is entitled to recover what you may believe from the evidence such services were reasonably worth, if anything, according to the usual charges of the medical profession in this vicinity.
“4. If the plaintiff knew that the disease from which the defendant was suffering was in the frontal sinus, and plaintiff had reasonable cause to believe in the exercise of ordinary care and skill that the same would yield to treatment without an operation, then he had the right to treat defendant for such trouble until such time as he became reasonably certain it was necessary to perform such operation; and he is entitled to recover for such services what the, same are reasonably worth, if anything, without regard to whether defendant was benefited by said treatment or not.”
Thereupon the court, at the request of the defendant, and over the objections of the plaintiff, instructed the jury in the words and figures following, except in instruction No. 2, which was a modification by the court of the instruction asked by the defendant, the modification being the striking out of the word “because” before the word “encouraged” and writing in lieu thereof the words “and was:”
“1. The defendant by submitting himself to plaintiff for treatment did not confer upon the plaintiff unlimited discretion to run a bill for any kind of treatment and to any extent the plaintiff might see fit to bestow upon him.
“2. Defendant had the right to expect good faith from plaintiff and to rely upon the supposed superior knowledge of the plaintiff to discover, determine and advise what course should be pursued in his case.. [64]*64If the treatment sued for was worthless to defendant, and if the plaintiff then knew, or ought as a man of his profession to have known, of the uncertainty or probable uncertainty of a cure of defendant from the treatment administered, and the defendant went for and received such treatment, and was encouraged by plaintiff to receive the same or because plaintiff failed to inform him of the uncertainty or probable uncertainty of a cure from such treatment, the verdict should be for the defendant.
“3. Plaintiff had no right, even if in the best of faith, to render service of no substantial benefit to defendant and charge therefor, if he himself had doubt, or a reasonably prudent and competent doctor ought to have had doubt, in his mind, of such service being a successful treatment of defendant’s trouble, unless he fully informed defendant of such doubt and defendant with such information of the uncertainty of the success of the treatment, afterward went for and received the same.
“4.
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BURGESS, P. J.
On the 24th day of March, 1896, plaintiff instituted suit before Theo. S. Case, a justice of the peace of Jackson county, against the defendant, R. H. Field, upon an account for one hundred and sixty dollars for services rendered defendant by plaintiff, as a physician. Plaintiff recovered, before the justice, judgment for one hundred and sixty dol[61]*61lars, the full amount of his claim. Defendant then took the case, by appeal, to the circuit court of Jackson county, where, upon a trial de novo before the court and jury, plaintiff again recovered judgment for one hundred and sixty dollars. From this judgment defendant appealed to the Kansas City Court of Appeals, when the judgment was reversed and the cause remanded for further trial. Thereafter, on the 17th day of November, 1901, the case was again tried in said' circuit court, and plaintiff recovered a verdict and judgment in the sum of fifty dollars. After unavailing motions for a new trial and in arrest of judgment, plaintiff appealed from this judgment to the Kansas City Court of Appeals, and thereafter, on motion of plaintiff, that court transferred the cause to this court, upon the ground that the court had no jurisdiction of the appeal because of there being a constitutional question involved.
The facts are substantially as follows:
The plaintiff was a practicing physician, making a specialty of diseases of the nose, throat and ear. He had treated defendant in the year 1890, and his bill for that service was paid by defendant. Defendant applied to him again for treatment in the month of October, 1892. The trouble defendant was suffering from in 1890 was different from that with which he was troubled in 1892. In the first instance he had an enlargement or thickening of the mucous membrane or lining of the nasal cavity. The plaintiff cured him, and defendant was not back to see him again until 1892, when plaintiff found that he was suffering from inflammation of the middle turbinate bone, together with inflammation of the frontal sinus. Plaintiff, hoping to relieve the inflammation, and successfully treat the disease without an operation, gave defendant the treatment sued for, telling the defendant that he could not state whether a cure would be worked, and declined to guarantee that such could be effected. It ap[62]*62pears, from plaintiff’s testimony, that the defendant, was benefited; that the case at times grew better; that the treatment administered to relieve the congestion in the canal leading to the sinns was successful, but that, from time to time, defendant would catch cold and violently blow his nose, thus keeping up the inflammation which tended to close the connection between the sinus and the nasal cavity.
Defendant’s side of the case was presented by his. own testimony and that of Dr. Leroy Dibble. The propriety and correctness of the treatment administered by plaintiff was supported by several physicians, and defendant’s expert, Dr. Dibble,- testified to the effect that plaintiff had been pursuing correct practice in endeavoring to work a cure without performing an operation. There was no contention on the part of defendant that he had'been in any way injured by plaintiff’s treatment, but he did testify that he did not think he was benefited thereby.
On behalf of the plaintiff the court instructed the jury as follows:
‘ ‘ 1. If you find and believe from the evidence that the plaintiff rendered the services -sued for to the defendant and at his request, and that no price was fixed or agreed upon, then the law implies a promise from the defendant to pay the plaintiff for such services what the same are reasonably worth, if anything; and this is true without regard to whether the treatment of plaintiff by defendant was beneficial to defendant.
“2. If you find and believe from the evidence that the plaintiff rendered the professional services to defendant as claimed by the plaintiff, then plaintiff is entitled to recover what you may find and believe from the evidence such services were reasonably worth, if anything, according to the usual charges of the medical profession in this vicinity; and this is true, although the services rendered may not have produced [63]*63a cure of the disease with which plaintiff was suffering.
“3. If you find and believe from the evidence that the plaintiff rendered the professional services to defendant as claimed by plaintiff, then the plaintiff is entitled to recover what you may believe from the evidence such services were reasonably worth, if anything, according to the usual charges of the medical profession in this vicinity.
“4. If the plaintiff knew that the disease from which the defendant was suffering was in the frontal sinus, and plaintiff had reasonable cause to believe in the exercise of ordinary care and skill that the same would yield to treatment without an operation, then he had the right to treat defendant for such trouble until such time as he became reasonably certain it was necessary to perform such operation; and he is entitled to recover for such services what the, same are reasonably worth, if anything, without regard to whether defendant was benefited by said treatment or not.”
Thereupon the court, at the request of the defendant, and over the objections of the plaintiff, instructed the jury in the words and figures following, except in instruction No. 2, which was a modification by the court of the instruction asked by the defendant, the modification being the striking out of the word “because” before the word “encouraged” and writing in lieu thereof the words “and was:”
“1. The defendant by submitting himself to plaintiff for treatment did not confer upon the plaintiff unlimited discretion to run a bill for any kind of treatment and to any extent the plaintiff might see fit to bestow upon him.
“2. Defendant had the right to expect good faith from plaintiff and to rely upon the supposed superior knowledge of the plaintiff to discover, determine and advise what course should be pursued in his case.. [64]*64If the treatment sued for was worthless to defendant, and if the plaintiff then knew, or ought as a man of his profession to have known, of the uncertainty or probable uncertainty of a cure of defendant from the treatment administered, and the defendant went for and received such treatment, and was encouraged by plaintiff to receive the same or because plaintiff failed to inform him of the uncertainty or probable uncertainty of a cure from such treatment, the verdict should be for the defendant.
“3. Plaintiff had no right, even if in the best of faith, to render service of no substantial benefit to defendant and charge therefor, if he himself had doubt, or a reasonably prudent and competent doctor ought to have had doubt, in his mind, of such service being a successful treatment of defendant’s trouble, unless he fully informed defendant of such doubt and defendant with such information of the uncertainty of the success of the treatment, afterward went for and received the same.
“4. The plaintiff in accepting defendant as a patient for the treatment of catarrh of the nose or near thereby in effect said to defendant that he possessed and would exercise reasonable skill and judgment to discover the trouble and whether it was curable, and that if a cure was doubtful he would inform the defendant of such doubt and not conceal the same from the defendant.
“5. If at the beginning of the bill in question or at any time during the plaintiff’s service the plaintiff was conscious of his inability to understand or properly treat the defendant’s trouble, it was his duty to at once fully inform the defendant thereof; concealment by plaintiff of any ignorance of defendant’s case in performance of unbeneficial service charged for would be a fraud, and for which service no compensation could be recovered.
“6. The plaintiff owed the defendant absolute [65]*65sincerity in accepting and keeping him as a patient. If the trouble with which defendant was suffering and for which he sought plaintiff’s professional aid was in the frontal sinus over the defendant’s right eye, and an operation was then necessary to relieve the trouble of the defendant, and the plaintiff knew this or could have known it by the exercise of reasonable skill and effort, then his treatment of plaintiff was unskillful and improper, and he ought not to recover any amount in this action.
“7. If the jury believe from the evidence that plaintiff failed to discover and cure the trouble of the defendant because he did not possess reasonable skill or because he did not exercise such skill, the finding should be for the defendant.
“8. The plaintiff cannot recover for the service rendered in this case merely because he may have performed such services with the permission or even at the request of the defendant and avoided giving defendant an express guarantee of a cure. The law does not permit a physician to recover compensation for worthless service to a patient even though he refrained from giving an express guarantee of a cure to defendant before and while performing the service sued for, if such service was negligent, unskillful, or was unfaithfully performed by plaintiff, as submitted in other instructions given to the jury at the request of the defendant.
“9. The court instructs the jury that they are not bound to accept the opinion of the doctors who have testified as experts in this case, but may give said opinions and each of them such weight as the jury may deem them entitled to, or altogether disregard such opinions in so far as the jury, from all the facts and circumstances in evidence, may believe such opinions unreasonable.”
[66]*66To which, action and ruling of the court in giving to the jury said instructions numbered 1 to 9 inclusive at the request of the defendant, the plaintiff at the time excepted.
Over the objection and exception of defendant the court, of its own motion, instructed the jury as follows: “If nine or more of the jurors agree on a verdict in this case, they will sign such verdict and return the same into court.” Thereafter the jury returned into court the following verdict: “We, the following jurors, find for the plaintiff and assess the damages at fifty dollars.”
This verdict was signed by nine of the jurors, and judgment for plaintiff was rendered in accordance therewith.
The first question to be disposed of is that of the jurisdiction of this court over this appeal. The verdict was rendered by nine jurors, as authorized by an instruction given by the court of its own motion, which plaintiff insists was error, as not being authorized by the State Constitution, and that he properly raised that point in his motion for a new trial. In this way a constitutional question was properly raised which conferred jurisdiction of this appeal upon the Supreme Court. [Saxton National Bank v. Bennett, 138 Mo. 494.]
It was held in Gabbert v. Railroad, 171 Mo. 84, that the common law right of trial by jury, by which is meant a trial by twelve jurors who must render a unanimous verdict, might be so amended that nine jurors, concurring, could render a verdict. That decision has always been followed with approval, and recognized as the settled law of this State.
Dr. Dibble, a physician of over thirty years’ experience as such, testified as an expert on behalf of defendant as follows:
“Q. Now, Doctor, I will ask you what the proper treatment is of an established case of disease of the [67]*67frontal sinns ? A. If it becomes so bad that there was a disease of the frontal sinns there — depending, of .course, upon the extent of that disease — it would be an opening into the sinus for the purpose of making applications directly to it; to get an established drainage, in other words.
“Q. Is that the only effective treatment in such a case? A. As a rule where it is especially bad, where there may be a necrosis or anything of that kind there.
“Q. Suppose that the patient has been suffering with the disease prior to the treatment of the physician, for two or three years, and there has been a constant discharge from the nose of inflammatory suppurative pus occurring not only when he had bad colds but when he didn’t have bad colds, and that pus was of an offensive odor and of yellow color, what would it indicate? A. That there was a disease — chronic disease of the frontal sinus.
“Q. I will ask you to state to the jury whether a mere palliative treatment, such as sprays into the nose of tannin or of vaseline or any other palliative treatment of that sort, would be of any utility in such a case? A. If there was a disease in the frontal sinus itself, you could not reach it with a spray through the nose, only to mitigate the conditions here in the nose itself. In other words, this mucous surface here, enlargement of the bone here, would act as a dam. Of course, there is a natural opening there. If this is congested or the bone enlarged that way, it acts as a dam to prevent the drainage from that sinus, and treatment down here to relieve the inflammatory condition and congestion would allow drainage. If that, drainag’e itself was not sufficient, then there is only one thing, and that would be an operative interference. ' That would depend then entirely upon the individual judgment of the operator or physician and, the condition of the patient.
“Q. Now, suppose the patient in 1890 had all that [68]*68done; that is to say, that the physician who treated him — in this case Dr. Logan — established that drainage there by galvanic cautery. That is used to cauterize the part and open the parts up? A. Yes, sir.
“Q. Suppose that was done in 1890, and the drainage was there, but that the disease in the frontal sinus still continued, and that the pus was offensive, and was there all the time constantly, what would be the only thing then to do?”
This last question was objected to by plaintiff upon the ground that it was based upon a condition that had not been shown to exist in the case; but the question was overruled and the witness permitted to answer. His ansewer was:
“It would be a matter of individual judgment then as to the operation. I think I, under the circumstances, should make an operation; but, as I said before, not seeing the case, I couldn’t state positively. It would be purely a question of individual judgment as to the operation at that time. ’ ’
The position of plaintiff respecting the admission of this testimony is that it was inadmissible because the ailment of defendant in 1890 was inflammation of the nasal cavity, while his trouble in 1892 was inflammation above that and extending into the sinus; that the doctor had relieved the first trouble by galvanic cautery, while there was no evidence tending to show that he had cauterized this canal leading to the sinus, where the last trouble existed; yet the question was based on the false premise that in 1890 he had cauterized the said canal.
We are inclined to the opinion that no foundation was laid upon which to bottom the question, but the answer to it was so indefinite and unsatisfactory that it could not possibly have prejudiced the plaintiff, and the judgment should not be reversed upon that ground alone.
A point is made upon the ruling of the court in [69]*69permitting defendant to testify, over the objection of plaintiff, statements made by Dr. Logan, Sr., to Tfitn as to what his son, the plaintiff, had said with respect to the treatment of the defendant by plaintiff and other matters as to defendant’s condition.
The evidence in question is as follows:
“Q.-1 will get you to state to the jury whether Dr. Logan, Sr., Doctor W. G. Logan, the father of the plaintiff, told you in August, 1893, in his office in the Keith & Perry Building, in this city, while his son, Dr. Logan, Jr., was in New York, that there was no use for you to take treatment; that Jim — that is the plaintiff in this case — had long regarded your case as incurable? A. I think you asked me if Dr. W. G. Logan didn’t say that to me in his office. It was in his son’s office.
“Q. Well, in his son’s office. A. Yes, sir; he said that to me.
“Q. Well, he stated to you at the time and place I have just stated that his son Jim had long regarded your case as incurable? A. Yes, sir; and that it was useless for me to take treatment. ’ ’
This testimony, as ruled by the court at the time, was admissible for the sole purpose of laying a foundation for impeaching the witness, and not as direct evidence, and some of the testimony, not necessary to point out, was clearly properly admitted for that purpose. Some of these statements were inadmissible for any purpose, but the objection- seems to have gone to the testimony under discussion as a whole, and under such circumstances the objection was properly overruled. [State v. Johnson, 76 Mo. 121.]
The court gave nine instructions on the part of defendant, all of which, except the seventh, are criticised upon the ground that they fail to direct the jury to the evidence in the case as the basis for their finding. This, we think, a misapprehension, as some of the defendant’s instructions restrict plaintiff’s right to recover [70]*70upon the evidence before the jury, and it was not necessary that all of the instructions should, in express terms, repeat the same thing over again. All that was necessary was that the instructions, when taken together, presented the case in a way such as to make the jury understand that their verdict must-be predicated upon the evidence.
But whether defendant’s instructions were in accord with the evidence and law of the case or not, such instructions did not go to the question of damages at all, but were confined to the issues involving plaintiff’s right to recover, which issues were found in his favor. He is in no position to complain of the instructions, as the verdict was for him. [Boggess v. Railroad, 118 Mo. 328.] In that case it was said: “The instructions now under consideration did not go to the question of damages at all, but were confined to the issues involving plaintiff’s right to recover. Those issues were all found for the plaintiff. The verdict established his right to recover. How, then, is he prejudiced by those errors? The plaintiff has no right to complain, that the verdict was in his favor; he does not, in fact, so complain; the whole burden of his complaint is, and can only be, that, having been so found, the jury gave him inadequate damages for his injuries, and of any error tending to produce this result he has a right to complain; but not of errors prejudicial only to- his right to recover, when in fact he does recover. The appellate courts of this State are prohibited by statute from reversing the judgment of any court, except for error committed by such court materially affecting the merits of the action. [R. S. 1889, sec. 2303.] And this court has uniformly disregarded such errors as "produce no injury. [Gregory v. Chambers, 78 Mo. 294; Pritchard v. Hewitt, 91 Mo. 547; St. Louis v. Lanigan, 97 Mo. 175; Stanley v. Railroad, 100 Mo. 435; McGuire v. Nugent, 103 Mo. 161; Green v. St. Louis, 106 Mo. 454.]”
[71]*71Notwithstanding the instructions, the jury found the defendant liable. The only possible objection which can be urged by plaintiff to the verdict is that the amount for the services rendered by him is not sufficiently large, but no objection is made thereto in the motion for a new trial. Besides, all instructions given with respect to the measure of damages which plaintiff was entitled to recover, in the event the issues were found in his favor, were given at his own request, and of which he cannot complain.
"While some of the defendant’s instructions are subject to verbal criticism, yet, when considered in connection with plaintiff’s instructions, they presented the case very fairly to the jury.
Finding no error in the record which justifies a reversal of the judgment, it should be affirmed. It is so ordered.
All concur.