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GRATUITOUS SERVICES.

§ 25. Professional services, like all mandates, being necessarily optional at their inception, and it remaining always discretionary with any party to accept or decline rendering them, no action will, in consequence, lie against a mandatary for nonfeasance, particularly where no consideration exists for the promise. For, ex nudo pacto non oritur actio. But when such services are once undertaken, and their execution actually entered upon, the contract is none the less binding because the mandator alone is to be benefited.1 While, therefore, a gratuitous bailee can not be compelled to execute what he has simply promised, but not yet begun to perform, since it is at any moment previous to this permitted him to withdraw, no excuse, based upon mere want of consideration, will avail him, in an action for misfeasance in the discharge of a trust he has once undertaken. This subject was very elaborately discussed in Thorne v. Deas,2 where it was held that where A. and B. were joint owners of a vessel, and A. voluntarily undertook to get the vessel insured, but neglected to do so, and the vessel was lost, no action would lie against A. for the non-performance of the promise, though B. sustained damage by the non-feasance, there being no con

The distinction taken at an early day between nonfeasance and misfeasance by a mandatary or a conductor operis, is founded in the principle that though a person can not be compelled to enter gratuitously upon the business of another, yet when he once takes it upon himself by beginning the work, he becomes responsible for any damages that may arise through his negligence or want of care. Edwards on Bailments, p. 98. 24 Johns. R. 84; Shiels v. Blackburn, 1 H. Blacks. 159.

And it is accordingly generally true with respect to gratuitous contracts, that, for non-feasance, even when a party suffers a damage thereby, no action lies; but for mis-feasance an action will lie. Broom, Comments. on Common Law, p. 814.

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Comments, on Com-

sideration for the promise. Kent, C. J., delivering the judgment of the court, said: "The offer on the part of the defendant to cause insurance to be effected was perfectly voluntary. But the defendant never entered upon the execution of his undertaking, and the action is brought for the non-feasance. There is then no just reason to infer from the ancient authorities that such a promise as the one before us is good without showing a consideration."

§ 26. Therefore is it that even without consideration, either present or prospective, if a physician undertakes to perform professional services, and actually enters upon their execution, he becomes immediately responsible for the consequences of his own acts, and for any damages, which may ensue to the patient through want of ordinary skill and diligence. "If," says C. J. Kent, in the case above cited, "the party who makes this engagement enters upon the execution of the business and does it amiss through the want of due care, by which damage ensues to another party, an action will lie for misfeasance.”

The rule is also well put in Smith's Mercantile Law, 4th ed., p. 112, in the following words: "But, if he do commence his task, and afterwards be guilty of misconduct in performing it, he will, though unremunerated, be liable for the damage so occasioned; since, by entering upon the business he has prevented the employment of some better qualified person, and the detriment thus occasioned to his principal is a sufficient consideration to uphold an undertaking on his part to act with care and fidelity."

So, in Shiels v. Blackburn,1 which involved the principle of the responsibility of a gratuitous bailee, Heath, J., thus

11 H. Blacks. 159.

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expressed himself: "If a man applies to a surgeon to
attend him in a disorder, for a reward, and the surgeon
treats him improperly, there is gross negligence, and the
surgeon is liable to an action. The surgeon would also
be liable for such negligence if he undertook, gratis, to
attend a sick person, because his situation implies skill in
surgery; but if the patient applies to a man of a different
employment or occupation for his gratuitous assistance,
who either does not exert all his skill, or administers im-
proper remedies, to the best of his ability, such person is
not liable."

And, in the same case, Lord Loughborough, C. J1, in
pronouncing judgment, said: "But if a man gratuitously
undertakes to do a thing to the best of his skill, where
his situation is such as to imply skill, an omission of that
skill is imputable to him as gross negligence."

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25. The esser Erician and pa sence of statut

s prerequisit of right to re tatutes often im modify the remed tion to such stainted with a !ter, of the la camscribed. this country to of the liberal pro iminately oper this as a prejudi retrievable in Ere than all th practitioners. ate to remedy but at all eve force, every po Safeguards to t File Nelson

§ 27. From all these adjudications, which have been repeatedly reaffirmed, and may now be considered as past the domain of just criticism, it may be deduced as a received principle of law, that a physician, though rendering his services gratuitously, as in hospitals, or among the out-door poor, is bound to exhibit the same degree of ordinary skill and diligence in the treatment of a patient, as if he were acting under the incentive of a consideration, or prospective reward. If he undertakes to execute the trust reposed in him, he is bound to do it well, or else he may be compelled to respond in damages to the party injured by his misfeasance. It is not the consideration which constitutes the foundation of his responsibility, but the fact that, in voluntarily accepting the mandate, spondet peritiam artis, indiscriminately to all. He can not, therefore, apportion his skill, or his diligence to meet the prospective emoluments flowing out of any given case. Quod

.113.

s to a surgeon to 1, and the surgeon negligence, and the surgeon would also ndertook, gratis, to tion implies skill in man of a different atuitous assistance, or administers imlity, such person is

hborough, C. J., in a man gratuitously of his skill, where an omission of that gence.'

which have been e considered as past be deduced as a ren, though rendering itals, or among the he same degree of atment of a patient, e of a consideration, akes to execute the o it well, or else he mages to the party ot the consideration s responsibility, but he mandate, spondet He can not, therece to meet the prosgiven case.

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medicorum est promittunt medici. For, under such distorted principles of legal obligation, the rich alone could bring suits for malpractice, while the poor would be left entirely remediless.1 There can be no doubt, therefore, that an action upon the case will lie for a misfeasance, in the breach of a trust undertaken voluntarily.

STATUTORY RESTRICTIONS.

§ 28. The essential nature of the contract between physician and patient remains the same, even in the presence of statutory enactments prescribing the qualifications prerequisite in a practitioner; but the liabilities and loss of right to recover for services rendered, which such statutes often impose in the nature of penalties, greatly modify the remedies at law of unlicensed physicians. In relation to such persons, every professional act of theirs is tainted with an infraction of the spirit, if not of the letter, of the law, and their rights are correspondingly circumscribed. There is, it is true, a growing tendency in this country to abolish all restrictions upon the practice of the liberal professions, and to throw their doors indiscriminately open to the public. And the knowledge of this as a prejudice, favored by public opinion, has worked irretrievable injury to the profession of medicine, doing more than all things else combined to encourage irregular practitioners. It may be, and is, possibly, already too late to remedy this evil by reviving statutes now extinct, but at all events, in States where they still remain in force, every possible sanction should be given to them as safeguards to the lives and health of communities.

' Vide Nelson v. Macintosh, 1 Starkie, 188; Wilson v. Brett, 11 M. &

W. 113.

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§ 29. Prior to any act repealing former statutes prohibiting unlicensed physicians from recovering a compensation for their services, an unlicensed physician can not maintain an action for medical services rendered, nor for the value of the medicines administered. And after such repealing act has been passed, an action will not lie on a demand for services rendered before its passage." A patent issued by the United States, securing the exclusive right to manufacture and use certain medicines, does not authorize the administration of them, in the character of a practising physician, without conforming to the laws of the State where administered.2 Nor can he charge for them unless practicing according to the laws of the State.3 In general, it may be said, in the words of Lord Ellenborough, that "if a person pass himself off as a physician, he must take the character cum onere, when he brings an action for visits paid by him as a physician."

§ 30. Where plaintiff, who had been employed by defendant as a physician, sues for the value of his services, and defendant pleads that the plaintiff was not licensed to practice, the burden of proving that he was not so authorized will be on the defendant, he having employed the plaintiff as such. For, whereever a person has employed another as a physician, and is sued by him for services rendered as such, the burden of proving that he was not legally authorized to practice is on the defendant." But where it was not averred or proved that the plaintiff was

'Bailey v. Mogg, 4 Denio, 60; Warren v. Saxby, 12 Vermont, 146. But see, per contra, Hewitt v. Wilcox, 1 Metc. 154.

2 Jordan v. Overseers of Dayton, 4 Ohio, 295.

Smith v. Tracy, 2 Hall Sup. Ct. (N. Y.) R. 465; Thompson v. Staats, 15
Wend. 395.

Lipscomb v. Holmes, 4 Campb. N. P. 441.

Dickerson v. Gordy, 5 Rob. 489.

Prevosty v. Nichols, 11 Marlin, 21.

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