Zumwalt v. Schwarz

The plaintiff, Fred H. Zumwalt, a physician and surgeon, brought this action against Jacob Schwarz, also a physician and surgeon, and the executors of the last will of Charles W. Haas, deceased, to recover the sum of $1500 claimed to be due for medical services rendered by plaintiff to the deceased during his lifetime, and upon trial a jury awarded him a verdict against all of the defendants for the full amount claimed. Judgment was entered accordingly, and defendants have joined in taking this appeal therefrom.

Haas had been under the medical care of Schwarz for some time and when his condition became critical Schwarz,

Ordinarily, of course, where a person requests another to perform certain services the law implies a promise on the part of such person to pay the reasonable value of the services performed; but the authorities hold uniformly that such rule has no application to a case where a person requests a physician to perform professional services for another to whom the person making the request is under no legal obligation to furnish medical aid (21 R. C. L. 412; McClenahan v. Keyes, 188 Cal. 574 [ 206 Pac. 454 ]) ; and in the ease last cited the Supreme Court of this state has declared that where no such legal obligation exists, one who calls a physician to attend another is not liable for the services performed in the absence of an express agreement to pay therefor. Furthermore, it is a general rule of agency that where an agent contracts on behalf of a disclosed principal the presumption is, in the absence of an agreement otherwise, that it was the agent’s intention to bind the principal and not to incur a personal liability; and ordinarily the agent will not be held personally except upon clear and explicit evidence of an intention to substitute or superadd his personal liability for or to that of his principal. (Heringer v. Schumacher, 88 Cal. App. 349 [ 263 Pac. 550 ].)

Briefly stated, the circumstances under which Zumwalt was employed were as follows: When Haas’ condition failed to respond to the treatments Schwarz was administering he concluded that certain major operations and extreme treatments were essential; and after talking the matter over with the members of Haas’ family he consulted with Zumwalt. These consultations extended over a period of some five days, at the end of which time Schwarz phoned Zumwalt that he was very much alarmed about Haas ’ condition and that he had decided to operate at once; and he asked Zumwalt to be present and assist. Zumwalt informed him

As will be seen, in none of the conversations between the parties, did Schwarz promise directly or by intimation that he would become personally responsible for the payment of Zumwalt’s services. The strongest interpretation that can be placed upon his language is that he would see that Zumwalt was liberally compensated by Haas. And that such was the understanding of Zumwalt is clearly shown by a conversation he claimed to have had with Schwarz at a hospital about three weeks after .Haas’ death, the substance of which he related as follows: “I said, ‘By the way Jake, what about my bill in the Haas matter, to whom shall I send it and when.’ Dr. Schwarz’s face colored a little and he said, ‘To tell you the truth, I have already been paid in the Haas matter, and I forgot about your bill.’ He said, ‘The family asked me to get the bills from all the doctors,’ and he said, ‘I didn’t think of yours.’ I said, ‘That is a very peculiar circumstance, because you are the one who suggested you would take care of my bill in this matter,’ and I said, ‘If that is the case, the estate has not been closed, and there is no reason why I still am not able to put in a bill against the estate.’ He said, ‘I would rather you would not do that, it might embarrass me,’ and some other words to that effect.” Zumwalt nevertheless presented his claim against the Haas estate, averring therein, among other things, that his services had been rendered at

The further contention is made that the amount of the fee awarded by the jury was excessive, it being argued that the trial court erred in allowing plaintiff to show by the cross-examination of Schwarz that he received a fee of $15,000 for his services, and in refusing to give to the jury two instructions to the effect that in determining the value of Zumwalt’s services the jury “was not .to consider the financial condition” of Haas, and that it was limited in such determination to certain items of services specified in the instruction and which corresponded with the items set forth in the bill of particulars theretofore delivered by plaintiff to the defendants. We find no merit in any of the foregoing points. The testimony relating to the amount of Schwarz’s fee was received without objection on the part of defendants, and the proof showing the value of the Haas estate was admitted under stipulation. It would seem, therefore, that defendants are not in a position to complain of the effect of such evidence. However, aside from the question of the admissibility of such proof, under the weight of authority it is held that the financial condition of a person receiving medical aid may be considered as affecting the reasonableness of the physician’s charges; and even in those jurisdictions holding to the negative view it will be found that an exception is made in favor of the consideration of such proof where, as here, there is evidence of a recognized usage, which has grown into a custom, to graduate professional charges with reference to the financial condition of the patient, so that it may be considered that the services were rendered and accepted in contemplation of it (48 Cor. Jur. 1168). In other words, general custom or usage must be considered in - determining the intent of the parties, and is in effect a part of the contract unless the

Irrespective, however, of the question of the materiality of evidence showing the financial condition of the patient, there is ample testimony in the record here to support the full allowance made by the jury for the reason that several witnesses testified that regardless of the financial condition of Haas, Zumwalt’s services were reasonably worth from $1500 to $2,500.

For the reasons above stated, the judgment as to the defendant Schwarz is reversed, and as to the remaining defendants it is affirmed.

Tyler, P. J., and Cashin, J., concurred.