Opinion
(June Term, 1858.)
Where a person had been sent for a physician, and not finding the one sent for, had spoken to another, and on the arrival of the latter, before the service was performed, the manner of his employment and the nature of the service were talked over and explained to the patient in the presence of the physician, in an action brought by the physician against the messenger, it was held not to be error in the Judge to leave it to the jury to say whether he had been informed before hand whom he was going to see, and for what purpose; and that if he was so informed, the messenger would not be liable.
ACTION of ASSUMPSIT, tried before SAUNDERS, J., at the last Spring Term of Stokes Superior Court.
The plaintiff declared for services rendered, as a physician and a surgeon, to a sick person at the defendant's request. The defendant was sent for Dr. Pettis to assist in a surgical operation, and not finding him, the defendant went to the house of the plaintiff, and said "I have come after you to go and see a sick man. This is all the witness heard. The plaintiff and the defendant went off together, and proceeded until they reached a point about three miles from the house of the sick man. Here the defendant separated from the plaintiff, who went on to the house of the patient in company with another person with whom he fell in company, and who was going to see the sick person. The doctor, who was in attendance on the sick man, explained to him what had occurred, and said that the plaintiff would assist in the operation, which was assented to, and the operation was performed.
The question was whether the defendant was liable.
The court left it to the jury to say whether, or not, they believed the plaintiff had been informed, beforehand, as to where he was going, and for what purpose. If so, the defendant being a mere messenger, was not liable. Plaintiff excepted.
Verdict for defendant. Judgment. Appeal by the plaintiff.
Morehead, for the plaintiff.
McLean, for defendant.
There is no error. The evidence tended to show that the plaintiff was aware of the fact that the defendant acted merely as a messenger, and did not intend, or expect, to make himself personally liable for the services which were to be rendered to the sick man. The doctor, who was in attendance, explained to the sick man, in the presence of the plaintiff, what had occurred, that is, that the defendant who had been sent for Dr. Pettis, not finding him, as the case was urgent, had applied to the plaintiff to come in his place, and the plaintiff would assist in performing the operation, which was assented to. If the plaintiff was not willing to assist at the instance and on the credit of the sick man, it was his duty then to have made known his objections.
To hold the defendant liable, under these circumstances, would deter every one from doing the charitable office of going after a doctor for a sick neighbor.
PER CURIAM, Judgment affirmed.