Rankin v. Beale , 68 Mo. App. 325 ( 1897 )

Gill, J.

Plaintiff sued the defendantjm an open account. Defendant filed a counterclaim on account of certain medical services and medicines, which defendant as a physician furnished Joe Rankin, a son of plaintiff, and who was at the time twenty-three years old. The evidence in defendant’s behalf tended to prove that plaintiff sent for and requested the defendant to come to plaintiff’s house and prescribe for his son, and there was testimony in plaintiff’s behalf contradicting this. There was also evidence to the effect that after the services were performed plaintiff promised to pay therefor and this, too, was contradicted.

There was a jury trial, resulting in a verdict and judgment allowing defendant’s counterclaim and plaintiff appealed.

I. Among other instructions the propriety of the following, given at the instance of defendant, is made the basis of this appeal: “The court instructs the jury that, although it may appear from the evidence that Joe Rankin, the son of plaintiff, was over the age of twenty-one years at the time the defendant, as a physician, treated him, yet, if it shall further appear that he was sick at the house of the plaintiff, and that plaintiff sent for defendant to treat or render medical services to his son, or if the plaintiff stated to defendant that he would pay him for said medical services so rendered to his said son, then they will find in favor of defendant for said medical services.” From a reading of this instruction it will be seen that the jury were advised that defendant must recover on his counterclaim, if they should find either that plaintiff sent for defendant to treat or render medical services to his son, or, that plaintiff stated that he would pay defendant therefor.

consideration: nudum pactum. PchudTPahydsiaduitschili. In view of certain admitted facts in this ease, the giving of the foregoing instruction was error. It is conceded that Joe Rankin, for whom the services were' performed, was, at the time, over the age of twenty-one years. JSis father, therefore, was under no legal obligation to supply said Joe Rankin with medical attention, or other necessaries. And again, the only express promise which it' was - claimed plaintiff made to pay for these services, was made after the same were rendered. Such prom- , . ise was, therefore, a mere nudum pactum, and of itself and alone could not supply the place of a contract. But'the vice of the instruction quoted is more patent when plaintiff’s liability is said to be fixed, though he did nothing more than send for the physician. It has been repeatedly held that a mere request from a father to a physician to attend a child of full age, and for whom he is not bound to provide, and though sick at the father’s house, raises no implied promise upon his part to pay for such medical services. Meisenbach v. Cooperage Co., 45 Mo. App. 232; Jesserich v. Walruff, 51 Mo.,App. 270; Crane v. Baudouine, 55 N. v. 256; Boyd v. Sappington, 4 Watts, 247.

■ Judgment reversed and cause remanded.

All concur.