Semple v. Ringo

172 N.W. 817, 42 N.D. 613, 1919 N.D. LEXIS 144

• Court: North Dakota Supreme Court
• Decided: May 5, 1919
• Status: Published

Opinions

Robinson, J.

This is an appeal from a judgment on a directed verdict for defendant. The parties are distinguished physicians and surgeons at Minot. The complaint avers that on several occasions in 1915 and 1916, at the special request of the defendant, plaintiff administered anesthetics to patients of defendant on whom he performed surgical' operations; that his services were reasonably worth $25, which defendant promised to pay. It is admitted that at the request of the defendant the plaintiff performed such services and that the same was reasonably worth $25. The defense is that in requesting the service defendant acted merely as the agent of his patients and did not assume any personal obligation, and that in such cases it is customary for a doctor to administer anesthetics and to look for his pay to the patients, and not to the doctor calling him.

In this case the defendant keeps a hospital at Minot and does quite an extensive operating business. On the several occasions, without disclosing the names of his patients or anything concerning them, he requested and accepted the services of the plaintiff in what are known as minor and major surgical operations. In such a case the principal surgeon commonly gets a good liberal fee for doing everything necessary for a successful operation. In modern surgery the proper administration of an anesthetic is a very essential part of the operation. It may also be necessary to obtain from a druggist antiseptic gauze or cotton, and other small things. All such services and necessaries are properly chargeable to the surgeon when he orders them without giving the name of his patient as the person to whom the charge should be made.

In this case it appears that at the request of defendant the plaintiff went and administered anesthetics, not knowing anything of the patients, not even their names; and not looking to them for payment. It also appears from abundant evidence that the custom is for a surgeon to pay the small fee of an assistant physician whom he requests to administer an anesthetic. Clearly both the presumption of law and the weight of the testimony are in favor of the plaintiff. The case should have been submitted to the jury. Judgment reversed and a new trial ordered.

Reversed.

Bronson and G'race, JJ., concur in result.