
    Thomas Simmons vs. Marcus D. Means.
    It is not sufficient evidence to uphold a verdict in favor of a physician for medical services rendered, and medicines supplied the defendant by the plaintiff, that the plaintiff practised in the family of the defendant, and was seen going and returning from the defendant’s house; coupled with proof that the items, as charged, were according to the customary rates ; such evidence is not sufficient to create a legal presumption of indebtedness by the defendant.
    A physician, under the decisions in this state, is permitted to show that he keeps correct books ; and that the account sued for is correctly copied from those books, upon which evidence he will be entitled to recover the amount of his account; but in all other particulars, physicians must be held, like others, to the customary rules of evidence.
    In error, from the Yalabusha circuit court; Hon. Hendley S. Bennett, judge.
    Marcus D. Means sued Thomas Simmons, in assumpsit, first, upon a special contract by the latter, to pay the former $150 for his professional services, as physician and apothecary, for one year; and second, for a like sum for medical services generally, and medicine supplied to the defendant and his family. Upon the plea of non assumpsit the cause was submitted to a jury, who found a verdict for the plaintiff of $130. A motion for a new trial being overruled, the defendant embodied the testimony in a bill of exceptions. It was as follows : Sarah M. Simmons testified that the plaintiff did practise in the family of the defendant; but she knew nothing of any special contract. It was also in proof, that during the period charged in the account the plaintiff was the family physician of the defendant; and was seen several times going to and from the defendant’s residence, and was frequently at the house of defendant; and that the charges contained in the account filed, were in accord-anee with the customary rates in the town of Coffeeville ; the bill of items was not inserted in the record.
    The defendant.prosecutes this writ of error. '
    
      Waul, for plaintiff in error.
    The bill of exceptions, which embodies all the testimony in the cause, shows that the plaintiff below entirely failed to establish any special contract.
    Nor are any specific services proved under the common counts. The proof shows that he was the family physician, and that he was seen several times at the house of the defendant; and that his charges were similar to the charges in Coffeeville. There is no proof whatever that he kept correct books, or furnished correct accounts; nor is any single act of medical service proved. Whether he was at the house as a visiter or physician, is equally uncertain; or even whether there was any necessity or call for his services — any sickness in the family. There certainly could be no right to recover if, as stated in his first count, there was a special contract; he would not have made charges of visits, and .the failure of proof of the contract assuredly would not entitle him to a recovery, without proof. This comes clearly within the rule recognized in the case of Haslip et al. v. Leggett, 6 S. & M. 331, 332, and the judgment will be reversed.
    Should it be urged that the bill of particulars is not included in the bill of exceptions, we answer, let the bill be what it may, include as many or as few items, there is no proof that can sustain the finding. And as the bill of exceptions includes all the evidence in the cause, the legal presumption is, that it was only referred to, and not produced before the jury.
    Fisher, for defendant in error.
    The only question to be noticed is, whether there was evidence before the jury from which they could infer the rendition of the services and medicines, by the plaintiff, in the court below. The jury would be authorized to take into consideration the nature of the services rendered by physicians. They are frequently called on in 'the night, when no one but the servant sent and the servant visited, knows of his service. It is a matter of importance to the public that he should respond promptly to every call made on him, and should not delay to hunt testimony to bear witness of the call made, before visiting the sick. The difficulty of proof, the situation of the parties, and the fact that the plaintiff was the family-physician, seen frequently going to and returning from defendant’s house, and sickness in the family, will be sufficient to uphold the verdict.
   Mr. Justice Thacher

delivered the opinion of the court.

This is an action of assumpsit, instituted by the defendant in error, upon an alleged (special contract, for services rendered as a physician, and upon an account for medical services and medicines administered. Upon a verdict and judgment’ for the plaintiff below, the defendant moved for a new trial, and it being overruled, he brings up the whole evidence in the case' to this court in a bill of exceptions. It is clearly evident that the effort to establish the proof of the special contract declared upon, entirely failed. The evidence introduced to prove the account, was to- the effect that the plaintiff below was the practising physician in the family of the defendant, and that he-was seen passing to and from the defendant’s house, during the time included in the account; and that “he did practise in his family” during the period, together with proof that the amounts charged in the account were according to the customary rates. The items of the account do not appear in the record. The bill of exceptions does not show of what character the professional services or medicines supplied were, or that any, in fact, were supplied. The evidence that the physician practised in the family, and was seen going and returning from his house, is not sufficient to create a legal presumption of indebtedness ,by the defendant. This court has gone so far as to authorize a physician tb rcover in an action against his patient, by establishing upon a trial the facts of his habit of keeping correct books of accounts, and that the account sued upon had been correctly copied from his books. Haslip et al. v. Leggett, 6 S. & M. 332. But with this exception, physicians must be held, like others, to the customary rules of evidence. In this view, the finding in this case was- plainly unwarranted by the evidence.

Judgment reversed, and cause remanded for a new trial.  