Seaman v. McNamara ( 1923 )

Crownhart, J.

{dissenting). I agree with Mr. Justice Jones that the judgment of the circuit court should be affirmed. Let us briefly state the facts: The plaintiff filed a claim against the estate of Thomas B. Lee, deceased, consisting of a note of said Lee to plaintiff for $1,750, balance for board $3, and $1.50 for three, shaves, total $1,754.50, whereupon defendant filed objections to said claim setting up, in substance, that said Lee. died at Cherokee, Iowa, on the 2d day of September, 1920, from the effects of a cancer; that on the 5th of July, 1920, he consulted the Mayo Clinic at Rochester, Minnesota, and was advised that there was no hope of recovery; that on the next day he went to Cherokee, where he met the plaintiff, who represented to said Lee that he could cure him of the cancer; that thereupon the plaintiff signed a treatment contract and the note in question; that the plaintiff failed to perform his contract in accordance with its terms, and that Lee paid the plaintiff $250 in cash at the time he entered into the contract. The defendant thereupon asked that the claim be disallowed.

The case came to trial in the circuit court before a court' and a jury upon the claim and the objections thereto'. The plaintiff introduced in evidence the note in question, computed the interest thereon, and rested his case. The defendant thereupon moved for a nonsuit, and the plaintiff asked leave to reopen his case, which was .granted. The plaintiff was called as a witness and testified to the effect that he was the owner of the note and that it had been in his possession since the signing, and to further prove his case he introduced the deposition of one D. A. Seaman, who was “getting out literature for Dr. Seaman” at the time, showing that he was present at the execution of the note and treatment contract and saw them signed, the treatment contract being identified as Exhibit A and the "note as Exhibit B. Exhibit A, the treatment contract, was first signed, and then Exhibit B, the note, was signed by Lee. No one was present but the plaintiff, Dr. Seaman, and the witness D. A. Seaman. The defendant then read from the deposition of D. A. Seaman to the effect that the treatment contract was signed; then the note was signed immediately following the contract, and thereupon defendant offered in evidence Exhibit A, being the treatment contract, which was received without objection..

Then both parties rested and moved the court for a directed verdict. The jury was discharged and the court made its findings of fact and conclusions of law, dismissed the case, and entered judgment for. the defendant. The plaintiff appealed.

This court now holds that the decision of the lower court was correct and without error, on the case as made before it, but reverses the case and sends it back for a new trial pursuant to sec. 2405m, Stats., which provides that this court may, “when it is probable that justice has for any reason miscarried,” or if it “shall be deemed necessary to accomplish the ends of justice,” grant a new trial in its discretion, even though there are no errors in the record and the judgment should be otherwise affirmed. The statute lays down a rule of equity to soften the rigors of the law.

Now we come to the question whether or not, from a fair consideration of the facts in the case, “it is probable that justice has for any reason miscarried” or a new trial should be “deemed necessary to accomplish the ends of ’justice.” I cannot bring myself to believe that this is a case where the conscience of this court should be moved to favor the plaintiff by granting a new trial. I can see no inadvertence of the plaintiff in the trial, but, on the contrary, it is perfectly plain to me that the plaintiff deliberately chose his ground for his contest in the court below. He sought to prove his case by the introduction of the note alone, and to rest upon the presumption of consideration. He stood upon his bond. He was a “stony adversary.” He craved the law. Pie pleaded not for equity or justice. Pie endeavored to disregard the treatment contract as immaterial, and, it would seem, with good reason. The treatment contract on its face shows that it is unconscionable and extortionate. It is such a contract as no reputable physician would be likely to make under the circumstances. It is set forth in full in the opinion of the court.

Here is a man sick unto death, who applies to a doctor for treatment, probably as a result of the work of D. A. Seaman in “getting out literature for Dr. Seaman.” On the face of- the contract it appears that the sick man had a cancerous growth of the lower lip reaching into the sub-maxilla gland, and the plaintiff was to do “his very best to effect a permanent cure of same by this first treatment.” Here is a' fairly implied representation that the plaintiff would probably cure the deceased man by a single treatment. However, it is represented to him that if he needs re-treatment he may have it as many times as necessary for the one price ($2,000), providing the party will return to the sanitarium and comply with all the rules, including paying the going price per week, weekly in advance, for board and room, which price is not given in the contract, and that the patient shall pay “$5 for every four bottles of blood purifier used by him after leaving the sanitarium.” In the absence of any testimony of the doctor showing what treatment he gave this man, the doctor being present at the trial, it may fairly be presumed from the contract that he treated him with his “blood purifier.” The note which he took from his patient bears interest at eight per cent., and provides that, in case of proceedings for collection, attorneys’ fees shall be allowed. A hard contract, indeed!

What happened? The sinking man, grasping at straws, signed the note and contract, stayed on at the sanitarium less than two months, and died. It seems to me too plain to admit of controversy that the plaintiff took advantage of his patient’s unfortunate condition to malee an unconscionable and overreaching contract. A doctor stands in a fiduciary or confidential relation to his patient, and this court need exercise no undue sympathy with one wtto dishonors a noble profession by oppression and extortion. It seems to me to be a perversion of the statute to grant a new trial in this case on the ground stated in the statute that “it is probable that justice has for any reason miscarried,” or “to accomplish the ends of justice.” It gives the plaintiff who comes into the court with unclean hands another chance to mulct the estate of his victim. The statute was not intended for any such purpose. It was intended to reach ''those cases which appeal to the conscience of this court as being cases where justice has not been done and hence requires a new trial in equity and good conscience. It must be noted that one party to this contract is dead. His mouth is closed. Pie may not disclose on the trial what happened at the making of this extraordinary contract. Only the two Seamans are witnesses to testify. .Further, I think it sufficiently appears that the deceased had a manifestly incurable disease at the time he came to Dr. Seaman. I think the contract carries with it a clear implication that the deceased, for a consideration of $2,000, would be cured. Such a contract is against the public policy of our laws and should not be enforced in our courts. Sec. 1436/, Stats.

For the above reasons I respectfully dissent from the decision of the court.

A motion for a rehearing was denied, without costs, on June 5, 1923.