MacEvitt v. Maass — 64 A.D. 382

Majority

p. 382

John C. MacEvitt, Respondent, v. G. Henry Maass, Appellant.

Headnote

Contract by-a physician to perform an operation — whether it is superseded by a statement that a more difficult operation is necessary—when hypothetical questions need not be put -^effect of the satisfaction of a judgment appealed from..

In, an action by a physician and surgeon to recover for professional' services rendered to the defendant’s- wife, evidence that after, an examination of the; - patient, the plaintiff told the defendant that a surgical operation was necessary, and that it was thereupon agreed between them that the plaintiff would perform the operation for seventy-five dollars, but that upon á subsequent exami- •

p. 383

nation of the patient a few days later he discovered that a different and more serious operation was necessary, and that he informed the defendant, who consented to the operation, nothing being said upon the subject of the fee, presents a question for the jury as to whether the original agreement based upon the first examination was not superseded at the subsequent interview. Physicians and surgeons who assisted in the operation may testify as to the value of the services from their knowledge of them, and are not confined to answering hypothetical questions.

The satisfaction of a judgment does not prevent the party against whom it was rendered from prosecuting an appeal therefrom.

■ Appeal by the defendant, G. Henry Maass, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of January, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Francis A. Mc Closkey, for the appellant.

John C. Judge, for the respondent.

The plaintiff sued to recover for his services rendered as physician and surgeon to the defendant’s wife, and recovered a verdict of $275. After an examination of the patient the plaintiff told the defendant that a surgical operation for an internal trouble was necessary, whereupon it was agreed between them that the plaintiff would perform the operation for $75. The plaintiff testified that a further examination, a few days later, revealed that the first diagnosis was erroneous; that the condition of his patient was more grave than first supposed; that the operation first suggested was not necessary, but that a different and more severe operation was required, which, unlike the former, jeopardized life, and that he told-all these things to the defendant, who consented to the operation then advised, but that nothing was said between them upon the-subject of the fee.

I think that Gaynor, J., properly submitted to the jury the question whether the plaintiff superseded the original agreement based upon the first examination, and that the verdict should not be disturbed.

p. 384

It is contended, however;, that there was no evidence from which the jury could determine the value of the services rendered. The plaintiff testified that he performed the operation with the assistance ■of four hospital surgeons and six trained nurses, that it was “ a very great deal ”—one of the most formidable operations of surgery, which involved cutting, and that thereafter he was in daily attend•ance between two afid three weeks upon the patient. Two experts who attended upon the operation, and one of whom was present at the subsequent visits, were called and placed a value on the services rendered. The plaintiff was not confined to a hypothetical questioning of such experts, for they were entitled to give their opinions upon what they knew of the services. (Mercer v. Vose,. 67 N. Y. 56 .) In Reynolds v. Robinson ( 64 N. Y. 589 ), cited by the learned •counsel for the appellant, the vice of the questions put to the experts was that they called for opinions based solely upon the statements they had heard in the testimony of other witnesses, and so they testified in the absence of personal knowledge . and without responding to factsi stated in hypotheses.

The.learned justice who presided at the trial states in his opinion that the testimony offered to describe the ailment and the particulars •of the operation were excluded under objection based on section 834 •of the Code of Civil Procedure, but the record fails to show this. .1 am of opinion, however, that there was evidence sufficient upon which to base the verdict rendered, because there is proof in the record of an operation with the attendance of four physicians and •six nurses — an operation severe in character, two and a half hours in duration, which required the knife, and which was followed by. many daily visits. It is also insisted that the plaintiff cannot sue because he has failed to comply with chapter 513 of the Laws of 1880. It appears that he came into the State in 1879, and that on ■September 25, 1880, he complied with section 2 of the act. The •statute Went into effect on October 1, 1880, and, therefore, the plaintiff was not within the provisions of section 4 thereof, inasmuch as it is not retroactive;

The learned counsel for the respondent submits a transcript from the dockets'of judgments, showing a satisfaction of the judgment in this action,- and insists that, therefore, the appellant is out of ■court. But as I do not so understand the law (Hayes v. Nourse,

p. 385

107 N. Y. 577 ) I have passed upon the points raised by the learned counsel'for the appellant without finding any merit in them Avhich Avould justify a disturbance of the judgment.

The judgment and order should be affirmed, with costs,

Goodrich, P. J., Woodward, Hirschberg and Sewell, JJ., concurred.

Judgment and order affirmed, with costs.'

Cases cited

Mercer v. Vose 67 N. Y. 56 N.Y. 1876-09-19 p. 384
Reynolds v. Robinson 64 N. Y. 589 N.Y. 1876-04-11 p. 384
Hayes v. Nourse 107 N. Y. 577 N.Y. 1887-12-23 p. 385