Burgoon v. Johnson ( 1899 )

Opinion by

Mr. Justice Brown,

It seems to us to be immaterial whether the affection on appellee’s nose was lupus or lupus cancer, as termed by the appellant. It is sufficient to know that Dr. Johnson, a physician who had been suffering from a sore on his face, called upon Dr. Burgoon of whom he said he had heard as a specialist in several diseases, for the purpose of being treated, and the only question before us is whether if Burgoon’s version of the contract or agreement between them be true, he is entitled to recover the sum sued for. When Burgoon, professing to be a specialist, met Dr. Johnson who had sought his help, both agree that the latter insisted upon knowing what the charge would bo for the treatment, and Burgoon testified that he said he would require in the event of a cure either a certificate from Johnson of his skill and proficiency as a specialist in the treatment of the trouble from which his patient had suffered, or $5,000 in cash. Assuming this to be true, did the court below properly instruct the jury that in its judgment the contract would make the $5,000, a penalty which could not be recovered? If this sum is to be considered as a penalty, the instruction was correct.

Upon no question have courts doubted and differed more than in determining whether the terms of a contract make a stipulated sum a penalty or liquidated damages. No definite rule to determine the question has been established, each case being determined more in direct reference to its own facts than to any general rule: Streeper v. Williams, 48 Pa. 450. Our Brother Mitchell, in Keck v. Bieber, 148 Pa. 645, referring to the difficulties in the formulation of a general rule, and especially in its application, calls attention to the prominence which must be given to the intention of the parties as the controlling element. He cites approvingly March v. Allabough, 103 Pa. 335, in which the late Justice Clark laid the same stress upon intention. In Clements v. R. R. Co., 132 Pa. 445, it was held that the intention of the parties has much to do with it, and in Keck v. Bieber, just cited, that the intent is “ the principal object of ascertainment.” It is unnecessary to review the authorities, our concern being simply to properly determine what the sum of $5,000 was in the case before us, and we can only do so by considering “ its own facts,” some admitted and others testified to by Burgoon. Johnson was a physician and, apparently not having been able to heal himself, sought Burgoon, thriftily inquiring what the latter’s charge would be. Burgoon testifies that it would be the certificate, or $5,000 in cash in the event of cure, and at the same time Johnson demurred to giving this certificate, asking that the terms be made “ a little easier.” By this he must have meant the cash terms. Appellant not yielding, Johnson said, “ I guess you may tackle it.” The sore was then treated and a cure effected.

Considering the subject-matter and surroundings of the case before us, as we must in determining the single question raised, and bearing constantly in mind that the intent of the parties is the principal object of ascertainment, we are not perplexed as to what we ought to do with this appeal. It has come before us because the learned trial judge held, and it is contended by the. appellee, that the $5,000 which Burgoon testifies was to be paid if the certificate was not given was a penalty, and therefore not recoverable. In so holding the court below must have lost sight of the controlling facts in the case. Johnson was himself a physician, seeking cure for his ailment at the hands of another. He was not the ordinary patient calling upon a specialist, but a member himself of the medical profession, knowing according to his own testimony what his trouble was, and presumed to know what would be a proper charge for the services to be rendered — what he himself might ask — and no matter what our judgment might be under different conditions, we cannot approve the view of the court below that the $5,000 was a penalty. If Burgoon is to be believed it was an alternative mode of payment, agreed upon by the parties capable of intelligently entering into such a contract, and the first assignment of error is sustained. The second need not be considered. Our judgment is that the case ought to be remitted for another trial that the court may instruct the jury that if Burgoon’s testimony is to be believed, Johnson must pay the sum agreed upon for the relief sought and found.

Judgment reversed and venire de novo awarded.