Holmes v. Halde , 1882 Me. LEXIS 95 ( 1882 )

Libbey, J.

The first exception relied on by the defendant, is to the admission of the plaintiff’s diploma from the Eclectic Medical College of Pennsylvania. By K. S., c. 13, § 3, one of the requirements to authorize a physician to recover compensation for his services, is that he " has received a medical degree at a public medical institution in the United States.” The statute does not require that the institution shall be a corporation. It is sufficient if it be a medical institution or school to which the public have a right of admission and instruction, on compliance with the rules and regulations established therefor, and which has the right by law to confer degrees. We are of opinion that the evidence upon this point was sufficient to lay the foundation for the introduction of the diploma, which, when its execution was proved, was legal evidence tending to prove that the plaintiff received a medical degree at that institution.

The second exception is to the rule of law' given to the jury by the court, by which the relation of master and servant should be determined. We think the charge on this point presented to the jury the rule of law carefully, fully and correctly. It is in harmony with the law as declared by this court in Eaton v. European and North American Railway Company, 59 Maine, 520; and McCarthy v. Second Parish of Portland, 71 Maine, 318.

The third exception is to the charge of the judge upon the question of damages. The clause of the charge excepted to is as follows : " But I instruct you as matter of law that the plaintiff is not prohibited from recovering damages for his loss of business as a physician, although he had no such degree from a public medical institution, or no such license from the Maine Medical Association, if ho satisfies the jury that he actually received cash for his services.”

We think this instruction correct. The action is for damages resulting from a personal injury. If, by the injuries received, the plaintiff was deprived of his capacity to perform his ordinary labor, or attend to his ordinary business, the loss he sustained thereby is an element of damages. The true test is what his services might be worth to him in his ordinary employment or business. It is not what sum he might legally recover for such services, but -what he might fairly bo expected to receive therefor. What he had previously been receiving for his services in his business, is proper evidence on this point. A clergyman who has no fixed salary, but is dependent entirely upon voluntary contributions for his compensation for his services, as in some of our churches, may have an income, and if by an injury he is deprived of his capacity to perform his duties, might lose that income, and suffer as much loss as if he was receiving a salary fixed by contract; and still he could not enforce the payment of anything from his church or society.

The plaintiff was practicing his profession as a physician. If he had received no medical degree or license, still he was not pursuing a business in violation of law. The law would afford him no remedy for the collection of his charges for his services, but if Ms patients voluntarily paid him therefor, so that be was receiving an income of a certain amount for his services, that was the measure of the value of his capacity to render them, and might be fairly considered as evidence tending to show that he would receive similar compensation in the future.

This question was fully considered in England in the recent case, Phillips v. London and South Western Railway Company, 42 L. T. Rep. N. S. 6. Tbe plaintiff was a physician, and brought his action for a personal injury by which he was incapacitated from attending to his business. At the trial, he proved that before the injury he had been receiving large special fees in the nature of gratuities from wealthy patients, which, with his regular charges, gave him an income of about five thousand pounds per year. The jury rendered a verdict for the plaintiff for sixteen thousand pounds. The case was taken to the court of appeal, and one of the questions was whether the jury was properly permitted to consider the special fees in estimating the value of the plaintiff’s business ; and the court held that it was a proper matter for their consideration.

The authorities cited and relied upon by the counsel for the defendant, are cases where the business lost or damaged was prosecuted in violation of law, and hence are clearly distinguishable from this case.

The defendant requested the court to give the jury the following instruction : " That if they find that by reason of the horse being frightened, or otherwise became uncontrollable, and Beaulieu [the driver] could not guide him, and the collision resulted from that, the defendant would not be liable.” It is claimed that this requested instruction should have been given. It was properly refused, because it does not embrace the element that the horse was reasonably safe for the use to which he was put on that occasion, nor the element that the horse became uncontrollable without the fault of the driver. Upon this point the instruction given was sufficiently favorable to the defendant.

It is unnecessary to consider the other requests for instructions, as they all relate to the rule of law by which the jury should determine whether the driver of the horse was the seiwant of the defendant, in regard to which the jury was fully and correctly instructed.

Exceptions overruled.

AppletoN, C. J., Walton, Baeeows, Daneoeth and Petees, JJ., concurred.