Rose v. O'Linn

Cobb, J.

The plaintiff in this ease assigns for error the giving of the 4th, 5th, 6th, 7th, and 8th instructions, which are in the following words:

“4. If it was simply an agreement to pay it — if some other party primarily liable did not — it was what is called a collateral promise or a promise to answer for the debt or default of another, and consequently void by what is known as our statute of frauds, for not being in writing.

*365 “ 5. Illustration of original and collateral promises may be given as follows, which you will understand are merely illustrations: If a person says, £ Go to that pauper and render him services, I will pay you/ that would be an original promise, and need not be in writing. If the promise was to render service for such a person,£ he will pay you, but if he does not I will/ that would be a collateral promise, and should be in writing to be valid.

'“6. But then there are cases where the line between original and collateral promises is not so distinctly drawn, and then it is for the jury under all the circumstances of the case to say from the evidence whether the promise was original or not. To decide this you should consider the situation of all the parties, the language; the question to whom the charge was originally made or the credit given is also a very important one in determining this fact.

“ 7. If you find that defendant Eose directed the plaintiff to go on and attend to the injured person and promised to see him paid, and you further find that such promise was an original one, then your verdict should be for the plaintiff.

“ 8. "When a witness is impeached — that is, when you find from the evidence that his reputation for truth is such that you cannot believe him under oath- — -then you should disregard the testimony of such witness.”

The plaintiff below was called as a witness on the trial in his own behalf, and testified as follows:

Q. Did you have any conversation with Mr. Eose concerning who should pay you ? If so, state that conversation entire.

A. I had a conversation with Mr. Eose. He stated how the accident occurred. He said that a neighbor of his, Mr. Whisenand, had driven a cow down in his herd. He had a bull in his herd, and Mr. Whisenand *366 had driven a cow down there against his express orders before — that is, it was generally understood no cows were to go into the herd without 'express orders from himself. In separating this cow from the herd, the bull ran against the pony of his herder, and in doing so had thrown him off — he being a cripple and unable to sit on a horse as a man naturally would. That was about the statement he gave as to how the accident occurred. Then he went on to state, in the bed-room where the man was that had got injured, that he was going to see that Mr. Whisenand should pay a poi’tion of the bill because he was responsible for the accident. After I had adjusted the fracture and applied the dressing, we went out to the breakfast table. Mr. Rose seemed to be very much excited, and he went on and stated in this language, as near as I can remember, after telling the circumstances over again: “But, doctor, you need not be at all alarmed about your bill; I will see that you are paid.”

Q. Did Re say anything about your continuing your treatment ?

A. He wanted the case attended to, and I did attend to it, until the fracture was knit and the splints removed.

It is claimed by the plaintiff in error that the above testimony brings the case within the provisions of the statute known as the statute of frauds, and that the promise of plaintiff in error to see that the defendant in error was paid is void, because of “ such agreement, or some note or memorandum thereof, ‘not’ being in writing and subscribed by the party to be charged therewith.”

To present the point in its true light, it should be stated that Ira Lee — the person whose broken thihg was set and cured by the defendant in error, a physician and surgeon — was the hired laborer of the plain *367 tiff; that the son of the Mr. "Whisenand spoken of by the plaintiff in error, as stated by the defendant in error in his testimony, went for a physician by direction of his father. Whisenand, when about starting his son for a physician, asked plaintiff in error if it made any difference which doctor was sent-for. He replied that he did not know as it made any difference to him. Young W. then went for and obtained defendant in error.

In the case of Leonard v. Vredenburgh, 8 Johns., 29, Chief Justice Kent, in delivering the opinion of the court, after citing many English and American cases, says : “ There are then three distinct classes of cases on this subject, which require to be discriminated: 1. Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time and becomes an essential ground of the credit given to the principal or direct debtor. 2. Cases in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it, though the subsisting liability is the ground of the promise, without any distinct and unconnected inducement. Here must be some further consideration shown, having an iinmediate respect to such liability, or the consideration for the original debt will not attach to this subsequent promise * * *. 3. A third class of cases, and to which I have already alluded, is when the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties.”

The first two classes are within the statute of frauds, but the last is not.

Although it can scarcely be said that any construction of the statute of frauds is settled law, yet I find the above case so often referred to and cited that I *368 deem it safe to adopt the principles there laid down, and if we find the case at bar coming within the same and falling within either of the three classes into which that eminent jurist has divided the subject, we will have to follow it.

It is not claimed, nor could it be, that Rose stood in any such relation to Lee as made him liable to pay for his (Lee’s) surgical treatment; nor was Rose in any manner responsible for the calling of Dr. O’Linn in the first place, and so if he is liable at all his liability grows out of the contract made after the operation on the limb had been performed by the doctor — out of the words spoken at the breakfast table.

The doctor had been called in the middle of the night; he had procured a conveyance and driver at a livery stable; had been driven sixteen miles, airriving there at day-light; had performed an important surgical operation, and, as the sequel shows, had done it skillfully and well. At this point it is a plain proposition that somebody was liable to pay the surgeon for this service, and it is equally clear that that somebody was not Rose. For he stood in no relation to the subject of the services and up to this time had done nothing to render him liable. In the mean time valuable services had been performed, for which somebody was 'originally liable to pay. If we stop here there is a perfect cause of action for a part of the doctor’s claim, but not against Rose. If by speaking the words at the breakfast table Rose became liable, what was the character of his liability ? Cei’tainly not original, because we have examined the contract in its original state and seen that Rose was not there. So such liability must be a collateral one.

I think that the case falls substantially within the second class as divided by C. J. Kent. In the ease at bar the debt was not created or the contract made by *369 a single act, like the execution of a note, as in Leonard v. Vredenburgh, supra, but extended over a period of several weeks. Tbe promise of Rose was made after tbe rendering by the doctor of an important part of tbe services upon wbicb tbe indebtedness arose, after the relation of physician and patient , bad been established between Dr. O’Linn and Lee, and.tbe relation of debtor and creditor between tbe doctor and whoever was primarily responsible for bis employment, and we have already seen that that was not Rose. The doctor says in bis testimony that Rose “wanted the ease attended to,” — that is, continued. He does not say bow be expressed that want. But I think that might be inferred from tbe words used, “I will see that you are paid.” Tbe doctor did continue tbe treatment, and such continuation of tbe treatment was a sufficient consideration for tbe promise to bring tbe case within tbe said second class. I therefore come to tbe conclusion that tbe case is within tbe prohibition of the statute of frauds; that the promise of Rose not being in writing, nor subscribed by him, is void.

I think tbe fifth instruction given in tbe charge to tbe jury in tbe trial court was calculated to mislead tbe jury in this — that tbe subject of tbe illustration, as well as tbe manner of stating it, was calculated to impress two points upon tbe minds of tbe jury, neither of wbicb was warranted by tbe testimony: first, that Lee was a pauper, and second, that Rose was tbe original cause of tbe doctor treating him.

But I place this opinion squarely on tbe ground that tbe verdict is not sustained by any legal or binding contract.

Tbe judgment of tbe district court is therefore reversed and tbe cause remanded for a new trial.

Reversed and remanded.