
    WHITE vs. MASTIN.
    [ACTION FOR VALUE OF MEDICAL SERVICES RENDERED.]
    Ik Proof of 'medical liceiise.-^-Under section 975 of the Code, a medical license is competent evidence, without proof of the signatures attached to it.
    3. Proof of special coi&ract'Vififi physician. — In' an- action to recover for the value of medical 'services rendered by plaintiff to -a third person, it is permissible for him to prove that, although ho did not begin, bo •continued his services-at the instance and request of the defendant; and, for this purpose, he may show that, when he spoke of discontinuing-his visits, » teleg-raphic dispatch and a letter from defendant, requesting that all necessary attention be bestowed on the patient at his exponse,> were shown to him by the person who had received them, and who then requested him to continue liis attendance.
    3. Same. — In such ease, defendant’s dispatch being- addressed to the Infirmary at which the patient was confined, but authorizing tlioem. yloymont of persons not connected with the infirmary to perform iidcessai-y- services for the patient, the fact tliat the defendant has paid the account contracted With the infirmary, which did not embrace the plaintiff's account, is irrelevant and inadmissible.
    
      ^.‘•Constrneiioii of special contract, evidenced by telegraphic dispatch. — M-f telegraphic dispatch, sent by the defendant to an infirmary at which a patient is confined,, in these words: “I have just learned of D.’s accident; show him every attention, and I will pay expenses” — authoiizes tlw infirmary to pi-ocure for the patient any medical services that may. be necessary, and oblig-es-the defendant to pay the person by whom sueli services are rendered, although he may not be connected' with the infirmary,
    5 .-Letter construed as authorizing employment of physician, ana'-hahmij writm- liable as original promisor.^--Defendant having- sent a telegraphic dispatch to an infirmary, requesting that all -necessary attention might be bestowed, at bis expense, on a patient therein confined by an accident; a letter, written by him two days -'afterwards, addressed to the person by whom his disxiatch was answered, and containing these words, “ May I not rely on your x>K>viding for D. as you or his attending- xfiiysician may think best”, — confers on the person to whom it is addressed authority to employ; at the oxxiense of the defendant;'Buoh.pliysician as he might think best, and renders tlio defendant liable, as on an original xwomiso, for the services rendered by such physician, •
    Si Contract betaiee'ti-physician’ and patient — There is nothing in the ordinary relation between a physician and his x>atient, which pirevents him from discontinuing- his services -at the instance of the patient, and entering into’ a contract with another person for the payment of the chavg'es'dor his future services; nor is the assent of the xiatient to such new contract necessary. .
    
      Appeal from the Circuit Court of Dallas.
    Tried before the Hon. Nat. Cook.
    This action was brought by Claudius H. Mastín, against Clement B. White, to recover the value of services and attention rendered and bestowed by the plaintiff, as a physician, at the special instance and request of the defendant, to and upon one David Lumpkin ; the amount of the account being $309. The defendant pleaded, “in short b,y consent, the general iásue, and the statute of frauds”; and issue was joined on these pleas. On the trial, as appears from the bill of exceptions, the plaintiff produced his license to practice as a physician, as required by written notice on the part of the defendant. The defendant objected to its admission as evidence, “ because no sufficient proof of its execution had been made.” The court overruled the objection, and the defendant excepted.
    The material facts of the case, as disclosed by the evidence, are these : Lumpkin was thrown from .a buggy, in the city of Mobile, in September, 1857, and severely injured; and was carried to the “Providence Infirmary”, where he was immediately attended by the plaintiff and another physician. On the 15th September, 1857, the defendant, who lived in Selma, sent a telegraphic dispatch to the infirmary, in these words: “I have just learned of David Lumpkin’s accident. Show him every attention, and I will pay expenses. He is my .cousin. Telegraph how he is.” The matron in charge of the infirmary, on receiving this dispatch, sent it to -one Batchelor, and requested him to answer it; and Batchelor accordingly did so. On the 17th September, 1857, .the defendant wrote and forwarded to Batchelor a letter, in these words: “I received your dispatch yesterday, and regret that you speak so discouragingly of David’s recovery. I would go down immediately and see him, were it not that, owing to the sickness of my partner and clerks, I am entirely alone, and heavy freights arriving. Should Mr. H. get well enough, I will come down on the next boat. But, .if I am disappointed in so doing, may I not rely on your providing for David as you or his attending physician may think best. I dislike the idea of his being in an infirmary, but presume that, being alone iff a large city, away from his relations, it is best. Will you 'please telegraph me every da,y of Ms condition ; and 'if lie should 'express any desire to have me come down, I will do so.” The letter and dispatch were Bbtli shawn'by Batchelor to the plaintiff, who continued liis attendance on Lumpkin, and afterwards amputated one of' his legs.
    The plaintiff read in evidence- the deposition of Batchelor, whose answer to tlie second' interrogatory was as follows : “‘Dr. C.' H. Mastín attended Lumpkin. Doctors Eéarn and Mastin first went to his aid, before any specific employment, to my'knowledge, was made ; from motives of' humanity, it may'be, until his friends could come to his relief.' Di. Eearn" discontinued his services after the first examination. Dr. Mastin continued with him, and went ont'With him to the hospital, or infirmary, on the night of the accident. In a short time after the injury, the annexed dispatch, marked ‘A’, was received by the infirmary, and was immediately sent"'to me by the sisters of charity, Í0 answer, at the request of Lumpkin, as w-ill be seen by the note on the back of the dispatch. ‘ I immediately telegraphed to Mr. C. B. White, as requested, and received from him, in reply, tlie letter marked ‘ B. I gave the letter and dispatch tó Df. Mastin, and it was in consequence of" them that he continued his attendance on Lumpkin. It was after the receipt of the letter and dispatch that he performed the operation of amputating Lumpkin’s leg; which was considered necessary to save his life. I am satisfied from the conversations I had with Dr. Mastin, that, if it had not been'"for the said letter and dispatch, he would have discontinued his attendance on Lumpkin, as the case was-one requiring much care, attention and watchfulness,- and he did nGt feel justified in continuing without some chance of compensation. Before the operation, and a short time after the injury, Dr. Mastin spoke of discontinuing his 
      
      visits to Lumpldn ; but, on my handing him the letter and dispatch of Mr. White, and understanding that he tvas able, to pay? continued his attendance, Irequest-mg him to do so”. The defendant objeetedito the admission of the- Italicized portions of this answer* and reserved exceptions to the ..overruling of his objections.
    ¡The defendant offered evidence showing that there was a -physician in the regular' employment of the infirmary where ¿Lumpkin was confined* whose duty it was to attend on all nihe ¡patients ? also, a receipt showing that he had paid to the infirmary, in June, 1858, the sum of $307, “in full .satisfaction, of all claim of the Providence Infirmary for . attention rendered to David P. Lumpkin while- confined ass an inmate thereof, arid for expenses incurred for him.” On : the plaintiff's motion,, the court excluded the receipt, together with all the evidence relating to it; to .which ruling, the defendant excepted.
    On the evidence adduced* all of which is set,out in the vsbill-of exceptions,the defendant requested the court to ...charge the jury as.follows :
    “1. That the .telegraphic dispatch was only an under¡•¡taking to pay the Providence Infirmary*, and did not make the defendant liable .to a person who was outside of, and , had no connection with that institution.
    
      “2. That the letter read in- evidence does not impose a liability on the defendant* in favor of the plaintiff in this •: .action, for services rendered toLumpkip» nnléss the defend- ,. ant was notified that plaintiff had acceded to the proposal in the letter, and was rendering .services, to him on ¡•¡the faith of that proposal,
    • “ 3, That if plaintiff began his attention and services to Lumpkin on the 9th -September, and did not know anything of the.defendant until the l-5th, and no letter or undertaking by the defendant to pay for services, or any request , to render services, (?) and continued to render his services, . and gave bis attention as he was doing before, — then Lump- , kin was liable for such services; and if Lumpkin was lia- , ble, then the defendant was not liable.
    
      “4. That if the plaintiff began Ms services as physician to Lumpkin on the 9th-Se'ptember, at the request of Lump-kin, and did not know anything of the defendant until the 15 th September ; and .there was no second agreement-or understanding between plaintiff and ¡said Lumpkin, hfter the dispatch read in evidence, or alter tbe letter, but the plaintiff continued his services just as he had done before, and until finally discontinued by Mm, then the defendant is not liable to him for such services ”.
    The court refused aaclr-.of these charges, and the defendant excepted to their refusal; and he now assigns as error the rulings of the court .on the .evidence*' with the refusal <of ¡the charges .asked.
    White & Portis, for appellant.
    Byrd & Morgan, contra.
    
   A. J. WALKER, C. J.

The objection to the plaintiff’s medical license was not well taken, and does riot seem to be now insisted on. The Code ($ 975) made the license competent evidence, without proof of the signar tures.

The plaintiff had been attending upon'Lumpkin before the dispatch and letter from tbe defendant 'were shown to him. It was permissible for him to show that his services afterwards were rendered under the employment of the defendant. Eor that purpose, ..the parts of the answer of the witness Batchelor to the-second interrogatory to-which objection - was made, were admissible. The witness, in saying that the plaintiff spoke -of discontinuing his «visits, does not give a .conclusion from what was said, but ■states the substance of the declaration; and the declaration was admissible, because it-was a part of tbe res gestos. We think that the witness uses the word “understanding” in the sense of learning. The whole evidence objected to means nothing more than this. The plaintiff .spoke of discontinuing his visits ; the witness showed him the dispatch and. letter; the plaintiff was told tbe defendant was able to pay; and the witness requested him to continue bis attendance, and he did so. The evidence seems all to belong to a transaction- hearing directly, upon the material question of the case, and was admissible... The objection, that th© dispatch and letter exhibited with the deposition of Batchelor were not identified by the commissioner* is not sustained by the record.

The. receipt of the Providence Infirmary, and the evidence offered in connection with it, were properly ex^eluded. The entire matter was irrelevant. i It showed a compliance on the part of the defendant with his contract with the infirmary j hut.it. could cast no, light upon the question, whether the defendant was the debtor of the plaintiff. There was no proposition to show that the plaintiff’s debt was embraced in the account to which the receipt pertained. Indeed, the contrary is shown by the record.

The first charge requested, to the effect that the telegraphic dispatch did not import an obligation to pay any person unconnected with the infirmary, presented, as-we think, too narrow a view of that instrument. The telegraphic dispatch requests the infirmary to show to Mr. Lumpkin every attention,, and proposes to pay expenses. This proposition to pay .expenses..is accompanied with the announcement, that the defendant had jpst learned of the accident to Mr. Lumpkin, which made him a subject for nursing as well as medicallancf surgical treatment. The dispatch is, therefore, to-,be construed in-reference to the condition of Mr. L.; and we think it .must be regarded as authorizing the procurement by the infirmary, for thew.ounded man, of .whatever his situation made necessary» although it might be supplied' by. a person not connected with the infirmary, and as obligating the defendant to pay the person furnishing, tbe same. , The charge was* therefore, properly refused.

In a letter written two days after the telegram, and addressed to Batchelor, the defendant, after speaking upon tfie subject of his going to Mobile, where Mr. Lumpkin was, said v “But, if disappointed in so doing, may I not rely upon your providing for David as you or his attending physician may think best.” This letter, when considered in reference, to the contents of the telegram, which had been handed to Batchelor, and by him answered, must be understood'to confer authority upon Batchelor to secure the attendance of such physician as he thought “best,” at the. expense of the defendant. This letter was not a guaranty, of such account as-might be contracted for Lumpkin’s Benefit, nor was it an authority to Batchelor to guaranty such debt. It was an authority to Batchelor to act for the defendant in- the procurement of necessaries ; and the defendant’s liability upon the plaintiff’s account was original. The law of guaranty has nothing to do with the case, and the second charge asked was properly refused.

Although the plaintiff may, at the outset, have rendered his services solely on Lumpkin’s responsibility, he was not bound to continue his services in the same way. He had made no special contract, which would have been broken by the cessation of his services. There is nothing in the ordinary relation between a physician and his patient, which would prevent the former from discontinuing his services upon the account of the latter, and entering into a contract with another for the payment of the charges for his subsequent attendance. We perceive no reason why the assent of the patient to the making of such a- contract should be necessary. There was, therefore, no error in., the refusal of the-third and fourth charges requested.

Affirmed.  