DENTAL JURISPRUDENCE DENTAL JURISPRUDENCE AN EPITOME OF THE LAW OF DENTISTRY AND DENTAL SURGERY BY ELMER D. BROTHERS, B.S., LL.B. PROFESSOR OF MEDICAL AND DENTAL JURISPRUDENCE IN THE UNIVER- SITY OF ILLINOIS, AND LECTURER IN JOHN MARSHALL LAW SCHOOL, CHICAGO. ST. LOUIS C. V. MOSBY CO. 1919 Copyright, 1914, by C. V. Mosby Co. | Press of C. V. Mosby Co. St. Louis _ PEEFACE This work has been prepared with the view of arranging in concise and readable form those principles and rules of law which most affect the dentist in his individual and professional capac- ity. It is a development of a course of lectures which the writer has been delivering to classes of dental students since 1895, and embodies what he found most useful and interesting to the progress- ive, inquiring mind of the student. It is believed the work will be instructive to any practitioner who desires to inform himself on this very im- portant subject. While the curricula of dental colleges have scheduled this subject for a number of years, it has been the observation of the writer that the instruction has frequently been limited to a few talks on the ethics of the profession, with a pos- sible discourse by some distinguished jurist on his experience in having a tooth extracted or some equally weighty legal topic. This condition of affairs has not been due to any lack of apprecia- tion of the importance of the subject but because of the inadequacy of the means at command, as no textbook suitable for the purpose has been available. As a result, most practitioners have had almost no instruction on their professional rights and responsibilities under the law. It is believed that in this epitome they will realize the information in question. No analysis of dental statutes has been at- tempted further than reference to judicial in- terpretations in their application, because the statute laws on questions involved are continually changing. The reader must refer to the statutes of his state for local regulations. Boards of Examiners will find it valuable not only in connection with examinations but also in determining their power and rights in the trial and discipline of licentiates. The writer has purposely confined himself al- most exclusively to the legal aspect of the ques- tions involved, in the belief that the dental phase is sufficiently covered in other courses; in other words, a knowledge of modern dentistry — its achievements and efforts, is assumed. Eeference is frequently made to authorities which support the propositions, in order to give the reader a direct line on the great volume of judicial opinions on the subject. Unless other- wise explained, L. E. A. means Lawyers Eeports Annotated (new series) and A. C. means Ameri- PREFACE can and English Annotated cases. While most of the references are to medical cases, the prin- ciples involved are eqnally applicable to dental practitioners. Elmer D. Brothers. Chicago, May, 1914. CONTENTS CHAPTER I. ANALYSIS OF SUBJECT. Nature of the Subject — Natuke of the Relation — Nature of the Profession — Definition . . . 1-6 CHAPTER II. SKILL, CARE AND JUDGMENT. General Observations — Skill and Care Confused — Relation to Legal Responsibility — Skill Re- quired — Care Required — Judgment Required — Specialists — > Progress — Non -professional Vol- unteer 7-25 CHAPTER III. MALPRACTICE. General Explanation — Negligence — ■ Carelessness Never Excused — Patient's Duty to Seek Other Professional Assistance — • Responsibility for Negligence of Nurses — Usual Treatment — Re- lation of Negligence to Injury — Experimenta- tion — Established Mode of Treatment — What Constitutes Negligence is a Question of Law — Negligence of the Patient — Confusion Among Authorities — Contributory Negligence — Inde- pendent Treatments — 'Presumption from In- jury or Failure to Cure — Suit in Tort — Agree- ment Excusing Negligence — Exhibiting Injury — Accident — Gratuitous Services — Arbitrary Refusal to Take Case — Civil Rights Acts — Wrong Diagnosis — Damages — Burden of Proof — ■ Partners — Independent Acts — Matron, As- sistant, Apprentice — ■ Death from Malpractice — Criminal Liability 26-50 CONTENTS CHAPTER IV. RES IPSA LOQUITUR. Pbe sumption — The Maxim — Application of the Maxim — Sponge Cases — Dental Cases — Others Involved — Infection 51-57 CHAPTER V. DENTITION. Development of the Teeth — Identification by Means of the Teeth 62-61 CHAPTER VI. ANESTHETICS. Definition — Kinds of Anesthetics — Responsibil- ity in Administering Anesthetics — Extreme Re- sponsibility in Fact — Effects of Anesthetic — Value of Testimony — Rape — Right to Admin- 62-68 CHAPTER VII. CONSENT TO OPERATION. Consent Necessary — Motive — Implied Consent — Scope of Consent — More Than One Method — Emergency — Whose Consent — Extent of Con- sent — Departure from Agreed Operation — 'Pro- hibited Act — Presumptions fbom Genebal Con- sent — The Patient's Right as Affecting Operator's Duty — Terms of Contract for Opera- tion — Damages for Unauthobized Operation . 69-87 CHAPTER VHL COMPENSATION. History — Agreement as to Fee — No Agreement as to Fee — Benefit to Patient — Fault of Servant — Benefit to Employer — Proper Treatment — Value of Services, a Question of Fact — Agree- ment Is Not Necessary — < Fee Where No Relief — What May be Shown — Nature of Remedies CONTENTS Must be Disclosed if Sought — Bill Differing from Pbesent Claim — How Proven — What Mat Not Be Shown — Professional Chabacteb of Peactitioners — Pecuniary Cibcumstances of Pa- tient — Special Agreement as to Result — Lia- bility of Thibd Pebson — License Presumed — Unlicensed Peactitionebs — Necessabies — Fam- ily Expenses — Parent and Child — Malprac- tice 88-102 CHAPTER IX. LICENSE. i. right to require or issue. Common Law Rights — 'Public Welfare — Right of State — Requieements — Unreasonable Limita- tions — • Resteictions — Power of the State — Boards of Examiners — 'Statutes Construed Lib- erally 103-109 n. power to revoke. Reserved Right — 'Not Vested Right — Manner of Revocation — Notice — > Hearing — Not a Judi- cial Function — Charges — Proceedings — Grounds or Causes — 'Revocation and Criminal Prosecution — Jury Trial — Statutes of Lim- itation 110-118 CHAPTER X. CONTRACTUAL RELATIONS. General Observations — Contracts — Definition — < Kinds of Contracts — Delivery — Parties — consideeation — effect of signing contbact — Constitutional Right to Contract .... 119-128 CHAPTER XL BUSINESS RELATION. Manufacturer and Buyer — Delivery — Payment — > Default in Delivery — Acceptance — Reason- able Opportunity — Specified Materlal — Qual- CONTENTS itt, Workmanship, Etc. — Defects — Rescission — Sensitiveness of Patient — Woek to the Satis- faction of the Patient 129-142 CHAPTER XII. MISCELLANEOUS SUBJECTS. Goods, Wares and Merchandise — Guaranty — Re- ceipt — Release 143-150 CHAPTER XIII. ADMINISTRATIVE LAW. Courts — > Jurisdiction — Procedure — Hearsay — Evidence — Testimony — Witnesses — Opinions of Ordinary Witnesses — Subject-matter of Ex- pert Testimony — Expert Witnesses — Basis of Opinion — Subjects of Inquiry — Cross-examina- tion of Expert — Privileged Communications — At Common Law — Statutes — Provisions — Pur- poses — Interpretation — Incidental Informa- tion — Waiver of Privilege — Dentists Not In- cluded by Construction — Code Napoleon — Criminal Purpose 151-169 CHAPTER XIV. MISCELLANEOUS SUBJECTS. Contracts and Work on Sunday — Survival of Ac- tion — ■ Joint Actions — Contribution — Satisfac- tion — Purchase of Peace — Agreement Not to Sue 170-174 CHAPTER XV. FALSE REPRESENTATIONS. Trust and Confidence — Opinions — > Confidential Re- lations and Special Knowledge — Fraud — Ma- teriality—Intent — Elements of the Tort — ■ Illustrations of the Principle — Responsibility of Practitioner for Opinion — Fraud in Conceal- ment of Inability to Relieve — Practitioner CONTENTS Changeable with Knowledge — Reason fob the Rule — Case Explained — False Advestisements — As to Thibd Pabty — Remedies — Damages . 175-194 CHAPTER XVI. CONTRACTS IN RESTRAINT OF TRADE. Not Favobed in Law — Specific Peefoemance — Rea- sonable Restbiction — Ageeement Not to Pbac- tice — Injunctions 195-197 CHAPTER XVII. STATUTES OF LIMITATIONS. Policy of the Law — When Cause Accbues — Mal- pbactice Cases — Diligence — Specified Sebvices — Latent Injueies — Minobs 199-205 DENTAL JURISPRUDENCE CHAPTEE I ANALYSIS OF SUBJECT Nature of the Subject.— The evolution of a na- tion's laws follows the progress of its civiliza- tion, the course of its enlightenment and the development of its industries. The jurisprudence of a people constitutes its autobiography. A his- tory of law is a history of the human race. Law never rises above the level of contemporaneous thought and sensibility. Laws furnish an exact index to the status of society. They embody the intelligence and reflect the character and pas- sions of the people. They register the magnifi- cence of power and reveal the secret canker of shame. A law never precedes its necessity or the conditions to which it applies. "Thou shalt not kill," would never have thundered from Sinai to the ages, had death not entered into the world, or had mankind not objected to such forcible tak- ing off. Given their laws, you determine the de- gree of civilization of a people, the progress they have made in the arts and sciences, their mode of existence, their enlightenment, their ideas of right 1 Z DENTAL JURISPRUDENCE and wrong, their conception of duty to each other, their notion of responsibility to deity. The de- velopment of every industry has been attended with the enactment of laws having special refer- ence thereto, to meet the conditions arising there- from. Thus, with a rise of intercourse among nations, came the law of the sea. Commercial relations necessitated the institution of laws to meet special requirements of business. Every special relation which has arisen among men has been characterized by special rules and regula- tions to protect the interests arising therefrom. Thus, the relation of dentist and patient is at- tended with certain special rights and responsi- bilities under the law, and a clear conception of the law of the subject must be preceded by an ac- curate knowledge of the nature of the relation out of which it grew. Nature of the Relation. — The relation of dentist and patient is contractual in character. The gen- eral principles of the law of contracts apply. The relation may be created by express agreement be- tween the practitioner and his patient, or it may be implied from the acts of the parties, and from the circumstances. The law imposes certain du- ties and obligations upon the relation, irrespective of the intention or wishes of the parties, and neither can escape them if he will. The wel- fare of the public is involved and, where the pub- lic is concerned, that consideration is supreme. ANALYSIS OF SUBJECT d The relation has certain fiduciary qualities also, and the practitioner holds the position of the su- perior. Before the relation exists, and during ne- gotiations, if any, leading thereto, the latter may treat with his prospective patient at arm's length and make any arrangement which is not uncon- scionable, but once the relation exists the law con- siders that the dentist is in a position of advan- tage and exacts of him the utmost good faith in all his dealings. The law justifies the patient in re- posing confidence in him, and in believing that the welfare of the patient will be considered para- mount to the personal interests of the dentist. Nature of the Profession. — In many respects dentistry is allied to the science of medicine, espe- cially to surgery. The operative dentist is in reality engaged in a limited branch of this art. The limitation is not in the gravity of the opera- tion, but in its character and the region operated upon. All surgery must necessarily have some relation to the use of the part which is the subject of the operation, with the intent to restore it as nearly as possible to its original usefulness. The operative dentist substitutes a new denture in place of one which has been lost; the surgeon as- sists nature to supply new bone for bone which he has removed. While, from their very nature, the operations are different in means and methods employed, their relations to the patient are sub- stantially the same, and have the same end in 4: DENTAL JURISPRUDENCE view. The treatment of an ulcerated condition at the root of a tooth requires the same knowledge of wounds, infections and their cure that is re- quired in the treatment of an infected condition in any other part of the body, with possibly an added requirement of special skill in reaching the seat of the trouble. Therefore, the legal status of a dentist has much in common with that of the doctor. Where their duties are similar their rights and obligations are the same. If consid- ered as a science dentistry is progressive rather than exact. Its teachings are empirical, being founded upon the experiences and achievements of the past. Dentist — Physician — Mechanic. — In a certain case it was held that a dentist was a physician within the meaning of an Act of Congress exempt- ing from service in the army "all physicians who are now and for the last five years have been in the actual practice of their profession. ' ' x Hunter was a regularly graduated dentist, having com- pleted a three year special course at a leading in- stitution, which fact, taken in connection with his duty as a dentist, was the decisive point in the case. In another case, a dentist was held not to be a physician within the meaning of a statute which exempted from jury service practitioners of medicine, 2 and, in the same line, the Supreme lln re Hunter, 60 N. 0., 265. 2 State v. Fisher, 119 Mo., 853. ANALYSIS OF SUBJECT Court of Mississippi held dentistry is not a trade and that a practitioner thereof is not a mechanic within the meaning of a law exempting from levy and sale on execution the instruments and tools of a mechanic for carrying on his trade. 3 A stat- ute in Michigan provided that communications to persons authorized to practice medicine or sur- gery, by patients in the course of their profes- sional employment, are privileged and cannot be inquired into in court. Under this statute it was held that dentists do not come within the terms ''persons authorized to practice physic or sur- gery," and that communications to a dentist are not privileged under such a statute. 4 Teeminology. — The law is not concerned in terminology or mere classification. It shapes it- self according to relations and subject-matter, not names. Whether the practice of dentistry is con- sidered a mechanical trade or a profession, its status in the eyes of the law is the same. By rea- son of the wonderful progress made during the last few years dentistry and dental surgery are justly entitled to be classed among the learned professions. Definition. — Dental jurisprudence deals with all those phases of the law which pertain to the den- tal profession and affect the dentist in his profes- sional relation and capacity. The law has its ori- 3 Whitcomb v. Reid, 31 Miss., 567. 4 People v. De France, 104 Mich., 563. 6 DENTAL JURISPRUDENCE gin in the relation and subject-matter of the pro- fession. This branch of the law treats of the rights and responsibilities, directly and indirectly growing out of the relation of dentist and patient. It may be said to be the science which teaches the application of dental science and skill to the pur- pose of the law. 5 The subject is not susceptible of exact, succinct definition. i Taylor: Medical Jurisprudence, 17. CHAPTER II SKILL, CARE AND JUDGMENT General Observations. — Skill, care and judg- ment are required in the performance of every duty. They are inherent in our ideas of proper conduct. Their degree varies with the character of the act in question, and is proportionate to the nature of the calling involved and the purposes and aims of the efforts. They have a direct rela- tion to the risk involved. Questions of skill, care and judgment are always raised in actions of malpractice. The untoward result complained of may have happened because of the ignorance, carelessness or bad judgment of the party sought to be charged. Skill and Care Confused. — In stating conditions of liability the courts do not usually separate the qualifications of the practitioner from the manner of the application of those qualifications in the particular case. Notwithstanding this confusion, no injustice has been occasioned because the meas- ure of responsibility is substantially the same for both requirements, that is to say, the same stand- ard which is applicable to test the knowledge, skill 7 8 DENTAL JURISPRUDENCE and qualifications, of the party sought to be charged, is used to determine the care, diligence, vigilance and attention. It is common, therefore, for the courts to speak of skill and care- as though they were coordinate. Both are relative terms, but the variable quantity in each is not the same. In the matter of knowledge, skill and ability, the variable coefficient is the status or condition of the profession at the time and place, or similar places, and which, at any given time and place is neces- sarily a fixed quantity in all cases, while the vari- able coefficient in the question of care is the spe- cial circumstances of the particular case. It is most natural that the courts in their decisions should not distinguish between these two require- ments because, to the patient, the injury is the same whether it results from an absolute want of knowledge on the part of the dentist or from a fail- ure to apply his knowledge in the case at hand with proper care. When the patient dies, he is dead, and what shall it profit him whether he was sent to the shades through the ignorance or negli- gence of the practitioner? In practice, now that all dentists are required to stand a certain test as a condition to engaging in the practice of the pro- fession, the patient does not attempt to prove gen- eral ignorance or want of skill on the part of his dentist, but directs his efforts to proving that in his case the dentist did not apply and use the SKILL, CAKE AND JUDGMENT 9 knowledge and skill demanded by the relation un- der the law. Relation to Legal Responsibility. — Implied Teems of Contract. — A person who offers his services for employment in any profession, as a practitioner in that profession, by implication contracts with his employer — First. — That he possesses that reasonable de- gree of learning, skill and experience which is usu- ally possessed by members of the profession at the time and place, and which is ordinarily regarded by the community, and by those conversant with that profession, as necessary and sufficient rea- sonably to qualify him for such employment; Second. — That he will use reasonable and or- dinary care and diligence in the exertion of his skill and the application of his knowledge to ac- complish the purpose for which he is retained, and Third. — That in the exertion of his skill and the application of his care and diligence, he will use his best judgment. 1 Same Eestated. — The implied obligation of a practitioner, retained to treat a person profes- sionally, extends no further, in the absence of spe- cial agreement, than that he will indemnify his pa- tient against any injurious consequences resulting l Leighton v. Sargent, 27 N. H., 460; Kuhn v. Brownfield, 34 W. Va. 252; Coombs v. King, 107 Me., 376. 10 DENTAL JURISPRUDENCE from his want of the proper degree of skill, and from his failure to exercise due care under the circumstances, or to use his best judgment in the premises in the execution of his employment. 2 Skill Required. — Use of Teem. — In this con- nection the word is used in its broadest sense and means, knowledge, qualification, ability, dexterity. When a person assumes the profession of den- tistry but makes no special representations as to his skill, the law implies that he thereby repre- sents that he has an ordinary degree of skill, knowledge, qualification and ability in that re- spect. 3 The presumption extends to the positive requirement that such skill shall be applied to the particular case in order that the patient may have the benefit thereof. 4 The law implies an under- taking on the part of the practitioner that he will use reasonable and ordinary skill in the profes- sional treatment of his patients. 5 Generality of Such Requirement. — The same obligation rests on the practitioner in any profes- sion. Persons who offer themselves to the pub- lic as practitioners of any profession thereby im- pliedly promise the persons employing them that they possess the requisite skill and knowledge to enable them to handle or treat such cases as they undertake, with reasonable success. This rule 2 Craig v. Chambers, 17 Ohio St., 253. 3 Ritchie v. West, 23 111., 329, 330. 4 Barnes v. Means, 82 III., 379, 384. 5 Chitty on Contract, 553. SKILL, CAEE AND JUDGMENT 11 does not require the possession of the highest, or even the average, skill, but only such as will ena- ble the practitioner to treat the cases undertaken safely and understandingly. "Every person who enters a learned profession undertakes to bring to the exercise of it a reasonable degree of skill. He does not, if he is an attorney, undertake at all events to gain the case ; nor does a surgeon under- take that he will perform a cure, nor does the lat- ter undertake to use the highest degree of skill, as there may be persons of higher education and greater advantages than himself. However, he does undertake to bring a fair, reasonable and competent degree of skill." 6 The reasonable and ordinary skill which is required of practi- tioners of any profession is such as those in the same general lines of practice ordinarily have and exercise. 7 Presumption as to Skill. — There is no pre- sumption of law that the practitioner actually pos- sesses any skill, ability, knowledge or qualifica- tion, neither is there a presumption of want of such qualifications. 8 Generally speaking, the fact that a patient is injured, or that he received no benefit from the treatment, or that the dentist failed to accomplish satisfactory results, does not raise any presumption of want of skill or knowl- edge. Default in these respects must be estab- 6 Lanphier v. Phipos, 8 Car. & P., 478. 7 Carpenter v. "Walker, 170 Ala., 659. 8 Davis v. Kerr, 239 Pa. St., 351. 12 DENTAL JURISPRUDENCE lished from all the facts and circumstances in the case. The result of treatment is often only a minor consideration. A license is prima facie evidence of the possession of these qualifications and, in the absence of evidence to the contrary, is sufficient to establish that fact. A Eelative Standard. — The degree of skill re- quired is not capable of exact determination. It can be stated only in relative terms, which are necessarily variable in their nature. But each generation, — each moment — takes care of itself. The Eule Stated. — The test is, Does the prac- titioner possess the reasonable knowledge and skill ordinarily possessed by members of the pro- fession in average localities similarly situated at the time? The law does not require that he shall have the highest degree of knowledge and skill. 9 The standard of requirement in this respect is not even as high as the average competent members of the profession in similarly situated communi- ties generally, because average means midway be- tween two extremes and, therefore, there must be some competent practitioners on both sides of the line. In its ultimate analysis the standard of ca- pacity is the lowest qualification tolerated by law. 10 Degree of Skill as Eelated to Disease Treated. — The degree of skill required has no re- 9 McNevins v. Lowe, 40 111., 209, 210 ; Ritchie v. West, 23 111., 329, 330. 10 Holtzmaji v. Hay, 118 111., 534. SKILL, CAEE AND JUDGMENT 13 lation to the character of the services to be per- formed in the particular case. The standard of knowledge and skill fixed by the law for the prac- tice of any profession has no relation to the condi- tion or disease treated, is not in proportion to the severity of the injury, nor the nature of the opera- tion, nor is it dependent upon the circumstances of the case. 11 Best Skill. — A practitioner is not chargeable with negligence for failure to use his best skill, if he uses the skill which is exercised generally by practitioners of ordinary skill in similar locali- ties at the time, provided his conduct is consistent with due care under the circumstances. 12 Eule Illustbated. — The skill required need not be that of thoroughly educated practitioners only, but must be that of the average, having regard to the improvement and advanced state of the pro- fession at the time of the treatment. 13 By ordi- nary skill is meant such skill as is commonly pos- sessed by ordinarily competent men engaged in the profession in similar localities at the time. 14 The standard of ordinary skill may vary even in the same state according to the greater or less op- portunities afforded by the locality for observa- tion and practice. 15 A physician practicing in a llUtely v. Burns, 70 III., 162, 164. 12 Dorris v. Warford, 124 Ky., 768; 9 L. R. A., 1090. 13 Peck v. Hutchinson, 88 la., 320. 14 Heath v. Glisan, 3 Ore., 64; Dashiell v. Griffith, 84 Md., 363. 15 Smothers v. Hanks, 34 la., 289. 14 DENTAL JURISPRUDENCE small village who undertakes to perform a difficult operation, is bound to possess that skill and abil- ity only which physicians and surgeons of ordi- nary ability and skill practicing in similar locali- ties, with opportunities for no large experience, ordinarily possess. Highest Skill. — He is not bound to possess the highest degree of art and skill possessed by emi- nent surgeons practicing in large cities. 16 Locality Considered. — In determining what constitutes the reasonable and ordinary skill and diligence which it is the duty of a physician to possess and exercise, the test is the degree of skill and diligence which other physicians in the same general neighborhood, and in the same general line of practice, ordinarily have and practice. 17 In other words, a physician must have such skill as physicians in the same general neighborhood in the same general line of practice ordinarily have and exercise in like cases. 18 A physician is required to use no more than the care and skill of the physicians of his neighborhood, if there are other physicians there presumably of average abil- ity when compared with similar localities. Ordinarily and Eeasonably Skillful only Considered. — In its ultimate analysis the rule means that the practitioner must exercise the av- erage degree of skill possessed by ordinarily and 16 Small v. Howard, 128 Mass., 131. 17 Force v. Gregory, 63 Conn., 167. 18 Gates v. Fleisher, 67 Wis., 504 ; Nelson v. Harrington, 72 Wis., SKILL, CAEE AND JUDGMENT 15 reasonably skillful members of the profession in such localities generally, and not a standard de- termined by the average skill in his own locality. 19 It has been said that while the law does not exact the highest degree of skill and proficiency obtain- able in a profession, still it does not, on the other hand, contemplate mere average merit, including the skillful and unskillful. 20 In order to deter- mine who will come up to the legal standard, we are not permitted to aggregate into a common class, the quacks, the charlatans, the empirics, the new men who have had no practice, the old ones who have dropped out of the practice, the skilled and the unskilled, the good and the very best and then strike an average between them, as such method would place the standard too low. In fixing a standard and striking an average, only the ordinarily and reasonably skillful should be considered. It is not enough to render a practi- tioner liable to show that he has a less degree of skill than some other practitioners might have shown, or that he exercised a less degree of care than he himself might have been able to bestow; nor is it enough that he even acknowledges some want of care ; there must have been a want of or- dinary skill and care to such a degree as to have led to the bad results. 21 Skill Applied. — If the ground of complaint be 19 Gramm v. Boener, 56 Ind., 407; Kelsey v. Hay, 84 Ind., 20Holtzman v. Hoy, 118 111., 534. 21 Rich v. Pierpont, 3 Foster & P., 35. 16 DENTAL JURISPRUDENCE stated as want of skill or ability, the evidence must have reference to these qualifications as dis- played in the particular case. It is quite clear that the treatment of the particular case might show such gross ignorance of the business of the practitioner as to put it beyond all doubt that he had not the amount of skill usually possessed by members of the profession or even, in fact, that he had no knowledge of his profession at all. 22 It might appear that the course pursued was wholly unknown to the profession and that it resulted, as it necessarily must, in detriment to the patient. Nothing further certainly would need to be shown to render answerable, for an injury done, one who should offer his services as a skillful practi- tioner. 23 In the absence of proof, the courts pre- sume that the work was skillfully and carefully done, and that the practitioner used his best judg- ment or rather, at least, the burden is on the pa- tient to establish the contrary, and in the absence of any proof, there would be no basis for a claim for liability. 24 Skill Eelates to Time or Injury. — The in- quiry as to skill must be directed to the time of the alleged malpractice, not to a period long subse- quent thereto. Possession of skill today does not tend to establish skill two years ago. 25 22 Com. v. Thompson, 6 Mass., 134. 23 Leighton v. Sargent, 31 N. H., llff. 24 State v. Housekeeper, 70 Md., 162. 25 Leighton v. Sargent, 81 N. H., 119. SKILL, CAKE AND JUDGMENT 17 Presumption feom Besult. — That a fractured limb is shorter than the other after the recovery of the patient, is not evidence that the practitioner was negligent, as such condition might result from the nature of the fracture or the condition of health and age of the patient. 26 The burden of explaining the fact is on the patient and he must show that the treatment of the case was the pri- mary cause for the shortening. Employed at Other Vocations. — In an action for malpractice, the patient may show that the practitioner is devoting time and attention to some other vocation, as such fact may have a bearing upon the question of his skill and care. 27 The manner in which the services were performed is the test of their character. 28 Intoxication. — Evidence that the practitioner was intoxicated at the time of rendering the serv- ices alleged to be improper, is admissible as a part of the res gestae. 29 Failure to Present Bill is no Admission of Malpractice. — In an action for malpractice, the patient cannot show that he has paid nothing for the services and that no bill has been rendered to him or charge made against him by the practi- tioner, as such failure is not an admission of 26 Piles v. Hughes, 10 la., 579. 27 Hess v. Lowrey, 122 Ind., 225; Mayo v. Wright, 63 Mich., 32. 28 Bute v. Potts, 76 Cal., 304. 29 Merrill v. Pepperdine, 9 Ind. App., 416. 18 DENTAL JURISPRUDENCE guilt. 30 However, where that fact was introduced by the practitioner, it was held harmless under the particular circumstances. 31 Care Required. — As a general rule, he whc un- dertakes for reward to perform any work, is bound to use a degree of care, diligence and attention adequate to the performance of his undertaking, according to the rules of the particular art in- volved. Care must be proportionate to the ex- tremities of the situation. Definition. — Care is attention with a view to safety or protection ; or oversight or watchful re- gard, implying concern or a sense of personal re- sponsibility, in an endeavor to promote an aim or accomplish a purpose. It is a relative term and varies according to the danger involved in the want of vigilance. Due care means attention ac- cording to circumstances. Carelessness is Not Misconduct. — The former is an act of omission and involves an abuse of dis- cretion under a definite obligation; the latter is an act of commission by violating a definite law. Misconduct is a forbidden act, while careless- ness is a forbidden quality of an act and is, neces- sarily, indefinite, depending upon the circum- stances. 32 Care is a Relative Term.— The degree of care, like the degree of skill, is not capable of exact de- 30 Baird v. Gillett, 47 N. Y., 186. 3Uones v. Angel, 95 Ind., 376. 32 Citizens Ins. Co. v. Marsh. 41 Pa. St.. 386, 394. SKILL, CAEE AND JUDGMENT 19 termination or statement. Here, again, we are forced to resort to relatives. Ordinary care and diligence, under the special circumstances con- stitutes the measure of duty and responsibility of the practitioner in the application of his skill and knowledge in the treatment of his patients. He must act with the reasonable care and diligence ordinarily and reasonably used by ordinary prac- titioners of the profession in average localities similarly situated at the time. 33 The Bule Stated. — The test is, What tvould an ordinarily skillful, careful and prudent practi- tioner have done under the circumstances? Pkesumption. — In the absence of evidence, the law indulges no presumption of want of care or diligence, neither does it infer the presence of these qualities. 34 Ordinarily, the fact that injuri- ous results followed treatment does not justify an inference of negligence or the want of care or dili- gence. The consequences complained of may be the result of the patient's condition, and in no respects due to the conduct of the practitioner. All the circumstances must be taken into consid- eration in determining what is due care. Highest Possible Cake not Eequiked. — A prac- titioner is not required, as a matter of law, to use the highest degree of care of which he is capable, if the care which he does exercise is that degree 33 Ritchie v. "West, 23 111., 329, 330; McNevins v. Low, 40 111., 210; Beck v. German Klinik, 78 la., 696. 34 Davis v. Kerr, 239 Pa. St., 351. 20 DENTAL, JURISPRUDENCE which is exercised generally by practitioners of usual and ordinary care, in similar localities, un- der the same or similar circumstances, provided his conduct is consistent with ordinary skill, hav- ing reference to the state of the science in the lo- cality at the time. The reasonable and ordinary care which is required of practitioners of a pro- fession, is such care as those in the same general neighborhood, in the same general lines of prac- tice, ordinarily exercise in like cases. 35 Judgment Required. — Generality of Applica- tion. — In the discharge of every mandate, there is involved the exercise of more or less judgment. However menial the service may be, a certain lat- itude of discretion is necessarily incident to its performance. You cannot eliminate this human element from any effort. From the laborer who digs in the ditch to the surgeon who holds a life in his hands, the element of judgment in the dis- charge of his duties is an essential part of the undertaking. In employing a person for any task, the employer knows that the exercise of that person's judgment will be involved in the performance of the services, and it is that per- son's judgment which is being paid for. We do not expect omniscience nor infallibility, and the law does not require that standard. A man's judgment may be good, bad or indifferent and, whichever it is, the employer engages that and 35 Carpenter v. Walker, 170 Ala., 650. SKILL, CAKE AND JUDGMENT 21 nothing more, and the servant has discharged his duty when he has given his employer his best judg- ment. Eule Stated. — In every contract of service the law injects the stipulation that the servant will use his best judgment in the discharge of his du- ties. Latitude of Discretion. — In professional serv- ices, there is a wide latitude for the exercise of this discretion, and the practitioner fulfills his ob- ligation in this respect when, in good faith and the exercise of due care, after reasonably informing himself, he determines the course to pursue. The dental practitioner is continually required to ex- ercise his discretion as to the course of treatment, or method of operation to be pursued. Whether to extract, treat and fill, crown, bridge or plate, are continually recurring questions which he must answer. In this respect he owes his patient his best judgment and nothing more. 36 Of course, as a basis for the exercise of that judgment he owes his patient the obligation carefully to diagnose the case, and reasonably to inform himself of con- ditions and circumstances. No Guaranty of Correct Judgment. — He does not guarantee that his judgment is correct, nor that it is as good as the judgment of some other practitioner. "When, under these circumstances, he gives his patient the benefit of the exercise of 36McKee v. Allen, 94 111. App., 147. 22 DENTAL JURISPRUDENCE his best discretion, he has done all that the law re- quires and he is not liable in damages, even though his judgment is wrong and his patient is injured thereby. Of course, reasonable information must precede the exercise of good judgment. Good faith requires that the practitioner understands before he decides. If he makes a proper investi- gation, in good faith, he is not liable, even though his diagnosis is wrong, and, on the other hand, as- suming that his diagnosis is correct and that, in the exercise of his best judgment, he arrives at a wrong conclusion, still he is not liable for the in- convenience or damage which his patient may suf- fer. 37 Different Courses. — Where different courses of treatment or procedure may be reasonably ap- plied, and a patient does not limit the practitioner to any particular treatment or procedure, the lat- ter has a right to use his best judgment as to the manner and means of treatment and procedure, and he will not be liable in an action for malprac- tice so long as his conduct is not inconsistent with ordinary skill and due care under the circum- stances. Where a practitioner, in all respects, uses his best judgment under the circumstances, he is not liable in damages to his patient, if his conduct was not inconsistent with the possession and use of ordinary skill and due care under the 37 Patten v. Wiggins, 51 Me., 594; Williams v. Peppleton, 3 Ore., 139; Fisher v. Niccolls, 2 111. App., 484, SKILL, CAKE AND JUDGMENT 23 circumstances, even though some other practi- tioner would have pursued a different course, and the results show that the former was mistaken. 38 Specialists. — Where a person holds himself out as a specialist in the treatment of a certain organ, anatomical part, physiological function, injury or disease, he is bound to bring to the aid of the one employing him as such, both in diagnosis and treatment, that degree of skill and knowledge which is ordinarily possessed by those who de- vote special study and attention to that particular organ, part, function, injury or disease, in the same general locality, having regard to the state of scientific knowledge at the time. 39 Thus, one who undertakes to treat an eye as a specialist, must have that degree of care and skill which is ordinarily possessed by physicians who devote special attention and study to the treatment of that organ. 40 The dentist who makes a specialty of oral surgery, or of extraction, must give to his patient that degree of knowledge and skill which is ordinarily possessed by such specialists in the general locality at the time. 41 If the patient re- lies on specific representations of extraordinary skill and ability on the part of the practitioner, he must allege such facts in his declaration. 42 38Luka v. Lo-WTie, (Mich.) 136 N. W., 1106; 41 L. R. A., 29( 39Rann v. Twitchell, 82 Vt. 79; 20 L. R. A., 1030. 40 Peeney v. Spalding, 89 Me., III. 41 Baker v. Hancock, 29 Ind. App., 456; 20 L. R. A., 1030. 42 Goodwin v. Hersam, 65 Minn., 233. 24 DENTAL JURISPRUDENCE Progress. — Practitioners must progress with their profession. They cannot cling to antiquated and abandoned methods, practices, remedies and appliances and escape liability for injuries re- sulting therefrom. They should not resort to ev- ery newfangled theory, nor always test the latest fad, but the best generally approved improvements should be resorted to when the proper occasion arises, having respect to the locality and time. What was proper a few years ago may be mal- practice today. Eesponsibilities are based on present enlightenment and experience. 43 Non-Professional Volunteer. — These require- ments of skill, care and judgment are implied from the relation of practitioner and patient, and there- fore do not apply where the relation does not ex- ist. If a person does not profess to be a dentist or to practice as such, and is merely asked his ad- vice as a friend or neighbor, he does not incur any professional responsibility, and in the absence of malice on the part of the volunteer the person fol- lowing his advice would have to bear the conse- quences. Thus, the friend who in case of tooth- ache or other infirmity volunteers advice and as- sistance to relieve the distress, does not thereby undertake to possess the qualifications of a den- tist, and where there is no such implied represen- tation the want of such qualifications does not 43 McCandless v. McWha, 22 Pa. St., 261; Van Hooser v. Berghoff, 90 Mo., 487; Gramm v. Boener, 56 Ind., 497. SKILL, CAEE AND JUDGMENT 25 create a liability, even though injury results to the recipient of the services by reason of default in this respect. 44 However, where the sufferer understands that the party rendering the assistance is a dentist and accepts the services in the belief that he is a mem- ber of the profession, and where the circum- stances are such as to justify him in entertaining such belief, the party rendering the assistance may be chargeable with the responsibility of a member of the profession and be required to re- spond in damages for any injury resulting by rea- son of his lack of such qualifications. 45 44McNevins v. Lowe, 40 111., 209; Higgins v. McCabe, 120 Mass., 13; Shields v. Blackburn, 1 H. Bl., 158; Beardslee v. Richardson, 11 Wend., 25. 45Matthei v. Wooley, 69 111. App., 654. CHAPTER III MALPRACTICE General Explanation. — Definition. — Malprac- tice is improper treatment of a patient by a prac- titioner, whereby the patient is injured. It means default in some one or more of the legal require- ments of skill, care and judgment. The fault may be an act of either omission or commission, and may result from ignorance, carelessness or poor judgment. Besides, there is the case where the patient is operated upon without his consent or over his objection and, though the operation may be skillfully performed, the act is in the nature of a trespass and constitutes an assault for which an action will lie. This action is in the nature of an action for malpractice. Essentials. — Both (a) improper treatment and (b) injury therefrom must be shown. Improper treatment without injury, or injury not shown to be the result of improper treatment, is not enough to make a case of malpractice in law. Unless both exist in the relation of cause and effect, and not as a mere coincidence, the patient has no rea- son for complaint, but if, because of default shown, the service did the patient no good, the 26 MALPRACTICE 27 practitioner would not be entitled to receive any fee in the absence of a special agreement for a fee in any event. Malpractice is a branch of the general law of negligence. Negligence. — Definition. — Negligence is the absence of care according to circumstances. 1 Negligence ''is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury." 2 The dentist who fails to do what a reasonably prudent dentist would have done under the circumstances, or does what a reasonably prudent dentist would not have done under the circumstances, whereby the patient is injured, is considered guilty of negligence and is liable for the damages sustained by his patient. Intention to injure is not an essential element in an action for malpractice ; in fact, the term neg- ligence excludes the idea of intent. 3 Good Faith. — Even though the practitioner acted in the utmost good faith, believing his treat- ment proper and safe, still, if he was not suffi- ciently qualified under the law, or if he omitted some duty or performed some negligent act, whereby his patient was injured, he will be liable for the consequences. Negligence may be the re- 1 Turnpike Co. v. R. Co., 54 Pa. St., 219, 225; Barker v. Essex, 27 Vt., 62; C. B. & Q. R. Co. v. Johnson, 103 111., 512, 518 et seq. 2 Cooley on Torts, 630. 3Bindbental v. Street Rd. Co., 43 Mo. App., 463, 471. 28 DENTAL JURISPRUDENCE suit of either ignorance, carelessness or poor judgment and, in either event, the practitioner will be liable to the patient for the consequent damages; but if poor judgment is relied upon as the basis of liability the error must be so gross as to establish either ignorance or carelessness, or that the party did not, in good faith, use his own best judgment. Carelessness Never Excused. — That others have been similarly careless is no defense to an action for malpractice. The fact that all men are at sometime careless, does not excuse any man for be- ing careless at any time. 4 Patient's Duty to Seek Other Professional As- sistance. — Ordinarily the patient is not bound to seek the aid of other practitioners to mitigate the consequences of the mistakes of the attending practitioner. 5 Responsibility for Negligence of Nurses. — The practitioner is not responsible for the conse- quences of the carelessness of nurses over whom he has no control. 6 Usual Treatment. — The practitioner is entitled to show by expert evidence that the treatment given was such as a practitioner of ordinary knowledge and skill would, and ought to have given. 7 4 Samuels v. Willis, 133 Ky., 459; 19 A. 0., 188 (A sponge case). 5 Chamberlin v. Morgan, 68 Pa., 168. 6 Sanderson v. Holland, 39 Mo. App., 233; Baker v. Wentworth, 155 Mass., 338. 7 Quinn v. Higgins, 63 Wis., 664. MALPRACTICE 29 Relation of Negligence to Injury.— Where a physician diagnoses and treats a broken arm as a sprain, resulting in permanent impairment of the usefulness of the arm, and the only claim of negligence was the failure to take an X-ray pho- tograph, it was considered that the patient had not made out a cause of liability, where it ap- peared that the diagnosis was proper and the physician acted with due care in reference there- to. 8 It has been held that failure of a physician to discover a serious rupture of the perineum, after repeated examinations for that purpose, is actionable negligence. 9 In the case cited, the con- dition must have been such as to make the fail- ure to discover the ailment inconsistent with rea- sonable skill or ordinary care. The jury may find that it is negligence for an attending physician to fail to discover and remove a detached portion of the placenta after a miscar- riage. 10 Experimentation.— The policy of the law is very strict against practitioners trying experiments. In other words, a physician cannot experiment with his patients to their injury. 11 Established Mode of Treatment.— Generally speaking, where there is an established treat- ment, it must be followed substantially. In such 8 Wells v. Ferry-Baker Lumber Co., 57 "Wash., 658. 9 Lewis v. Dwinell, 84 Maine, 487. 10 Moratzky v. Wirth, 67 Minn., 46; See Langford v. Jones, 18 Ore., 407. 11 Hasse v. Knippel, 1 Mich. N. P., 102. 30 DENTAL JURISPRUDENCE cases progress is at the risk of the practitioner. 12 If the ordinary and established practice of the profession is to treat an ailment in a particular manner, it is the practitioner's duty substantially to follow such practice, and if he adopts some other mode that proves injurious, he is guilty of negligence. Where a particular mode of treat- ment, to the exclusion of others, is upheld by the consensus of opinion among the reasonably skill- ful members of the profession, and sustained by the general experience of practitioners, it must be followed by the practitioner and, if he sees fit to experiment with other modes, he does so at his peril. 13 The rule does not apply, where, for any reason, the established mode of treatment cannot be adopted. 14 However, the burden is upon the patient to show that the departure from the estab- lished practice was the cause of the injury. 15 What Constitutes Negligence is a Question of Law. — While the question as to what is the proper degree of skill and eare required of a practitioner is a question of law, for the court to determine and announce, still the question as to whether or not these requirements were present in the par- ticular case, is a question of fact for the jury to determine. 10 In other words, it is for the jury 12 Carpenter v. Blake, 60 Barb., 488. 13 Jackson v. Burnham, 20 Col., 532. liHallam v. Means, 82 111., 379. 15 Winner v. Lathrop, 67 Hun., 511. 16 Harriett v. Plimpton, 166 Mass., 585 ; Langford v. Jones, 18 Ore., 307; Olmstead v. Gere, 100 Pa., 127. MALPEACTICE 31 to say, from all the evidence, whether or not the treatment amounted to negligence, under the rule of skill, care and judgment required by the law. 17 (For a full discussion of the subject, as to physi- cians, see Whitesell v. Hill, (101 la., 629) in 37 L. E.A. (0. S.),830.) Negligence of the Patient. — The causal relation between a practitioner's conduct, and his pa- tient's injury, in connection with operation or course of treatment, and the conduct of the pa- tient, presents itself in several different aspects involving different phases of liability. Fiest. — The patient alone may be at fault, in which event the practitioner will not be liable for the damages sustained. Under this condition of facts, the want of responsibility is the same, with- out regard to the time of the negligence, with reference to the time of the operation or the course of treatment; that is, whether (a) be- fore, (b) during the time of, or (c) after the serv- ices. Second. — The practitioner alone may be at fault, in which event he will be liable to the pa- tient for the entire damage sustained by the latter by reason of such negligence. Third. — Both patient and practitioner may be at fault, in which event the question of liability is affected by the fact as to whether the negli- gence of the patient was (a) contemporaneous or 17 Hewitt v. Eisenbart, 36 Neb., 794; Tifft v. "Wilcox, 6 Kans., 46. 32 DENTAL JUBISPKUDENCE concurrent, or (b) in order of sequence, with the negligence of the practitioner. (a) When the negligence of both operates con- temporaneously, concurrently and jointly to pro- duce the injury, the patient cannot recover but must bear the entire loss alone. (b) When the negligence of both operates suc- cessively to produce the injury to the patient, the practitioner will be liable for all damages naturally flowing from his own negligence, but he will not be responsible for the aggravation of the injury occasioned by the subsequent negligence of the patient. 18 Confusion Among Authorities. — There is con- siderable confusion among the decisions with ref- erence to this subject, and some courts have en- tirely lost sight of the foregoing distinctions, but wherever the attention of the court has been di- rected to the subject, these distinctions have been recognized. Contributory Negligence. — Definition. — Con- tributory negligence is such an act or omission on the part of the patient, amounting to want of ordinary care as, concurring with the negligent act or omission of the practitioner, is the prox- imate cause of the injury. 19 Where the negli- gence of the person injured primarily contributed 18 Sauers v. Smits, 45 Wash., 559; 17 L. R. A., 1242; Sanderson v. Holland, 39 Mo. App., 233; Wilmot v. Howard, 39 Vt. 447; Du Bois v. Decker, 130 N. Y., 325; See Geiselman v. Scott, 25 O. St., 86. 19 29 Cyc, 505. MALPKACTICE 33 to the injury, by direct association with the cause of action, he cannot recover damages. 20 Both parties being in fault with reference to the cause of the injury complained of, the law leaves the burden rest where it fell. Reason fob the Rule. — Though the action of malpractice is in the nature of an action for a breach of the implied terms of a contract, the general rules of law governing contributory neg- ligence are applied where both are contempo- raneously and concurrently at fault, because of the difficulty which would usually be encountered in an attempt to apportion the injury between them. In this respect, however, there is practi- cally no difference between actions for malprac- tice and other actions in tort, because, as a mat- ter of fact, all actions sounding in tort have their origin in and are based upon a breach of some obligation imposed by law. Illustrations of the Rule. — Where a pa- tient fails to return to the office for further treat- ment, as directed, whereby he suffers injury, though the treatment was proper and skillful, his trouble is attributed to his own negligence and he cannot recover from the practitioner. 21 The re- fusal of the patient to employ an assistant for the practitioner, when the same is necessary and rec- ommended by the practitioner, and the patient is 20 Littlejohn v. Arbogast, 95 111. App., 605; Hearing v. Spicer, 92 111. App., 449. 2lDashiell v. Griffith, 84 Md., 363; 17 L. R. A, 1243. 34 DENTAL JURISPRUDENCE injured by reason of such want of assistance, such conduct of the patient is negligence on his part, entering into the cause of action itself, and will defeat his right of recovery unless the conduct of the practitioner was such as to be inconsistent with skill, care and good judgment in the prem- ises. 22 A practitioner is liable for the injuri- ous results of his own negligence, although the subsequent acts of the patient, or others over whom the practitioner had no control, may have aggravated the injury. 23 If the improper treat- ment makes the injury unavoidable and inev- itable, an action against the practitioner will not be defeated by the fact that subsequent misman- agement, or negligence of the patient or others, may have aggravated the trouble. 24 Independent Treatments. — If two dentists are performing independent services for a patient, neither is liable for the independent negligence of the other. 25 A practitioner is liable to his patient for the damages resulting from his own negli- gence, even though the injuries are aggravated by the subsequent negligence of others. 26 Presumption from Injury or Failure to Cure. — Since injurious consequences, or failure to cure 22 Hearing v. Spicer, 92 HI. App., 449. 23 Hathorn v. Richmond, 48 Vt., 557. 24Wilmot v. Howard, 39 Vt., 449. 25 Foster v. Wadsworth Howland Company, 168 111., 514; 57 L. R. A., 1175. 26Wilmot v. Howard, 39 Vt., 449; Hathorn v. Richmond, 48 Vt., 557; Sanderson v. Holland, 39 Mo. App., 223; Sauers v. Smits, 49 Wash., 557; 17 Li, S. A., 1242. MALPEACTICE 35 or relieve, ordinarily do not establish either want of skill or want of care, it follows that proof of injurious results, or of such failure, is not suffi- cient to fasten liability upon the professional man. A practitioner cannot be regarded as an insurer of a successful result from his treatment, and to base a liability on failure alone would be to make him a guarantor. 27 The mere failure to effect a cure or afford relief, raises no presump- tion of either ignorance, negligence or poor judg- ment. 28 The fact that the patient grew worse under the treatment, and improved when the serv- ices were dispensed with, is not of itself sufficient to establish malpractice, as such facts may have been mere coincidences. 29 Suit in Tort. — Actions for malpractice are al- most invariably in tort, that is, ex delicto in char- acter. However, a practitioner may make a spe- cial contract with his patient, and for violation of the same he will be liable in contract; but where the action is for a breach of the obligation imposed by law as a matter of public necessity and policy, it is in the nature of tort and not in contract. 30 As said by the court in Eandolph v. Snyder, 139 Ky., 159 — "If the defendant made a contract with the plaintiff to treat him and his 27 Quinn v. Donovan, 85 111., 194, 195 ; McKee v. Allen, 94 111. App., 147; Yunker v. Marshall, 65 111. App., 667. 28Tifft v. "Wilcox, 6 Kans., 46. 29 Wurdenmann v. Barnes, 72 Wis., 206; Ely v. Wilbur, 49 N. J. L., 685. 30 Carpenter v. Walker, 170 Ala., 659; 25 A. C, 866. 36 DENTAL JURISPRUDENCE family, as alleged in the petition . . . and simply broke the contract by refusing to come when sent for . . . the right of action would be simply for the breach of the contract, and there would be no right of action in tort. But if the physician came and undertook the case and, having undertaken it, was negligent in his treatment, then a cause of action in tort may be maintained for the non-per- formance of the duty which the law cast upon him when he undertook to treat the case. ' ' In actions of malpractice the usual allegations of employ- ment of the practitioner by the patient are mere matters of inducement to show the relation exist- ing between the parties and, inferentially, the ob- ligation imposed by law on the practitioner by reason thereof. Agreement Excusing Negligence. — A practi- tioner cannot contract against his responsibility for negligence growing out of his want of skill or care, or his failure to exercise his best judgment in his services to his patient, as such an agree- ment is against public policy. 31 A practitioner who accepts but fails to respond to a call cannot be said to be guilty of malpractice, and if the pa- tient is damaged, his action ought to sound in contract. 32 But even in such case, the question might arise as to whether the delay in responding 31 Hales v. Raines, 162 Mo. App., 46. 32 See Adams v. Henry, 165 Mich., 554; 24 A. C, 829. MALPRACTICE 37 was due to refusal to call at all, or to negligence in determining when to make the visit. Exhibiting Injury. — In an action for malprac- tice, the patient may exhibit the injured member to the jury in order that they may determine the nature of the trouble charged to the practitioner, provided the demonstration does not involve in- decent exposure. 33 Accident. — Statement of the Eule. — No lia- bility attaches for injuries resulting from pure ac- cident. A patient may be injured under circum- stances which, in law, are considered purely accidental. In such cases the practitioner is not liable for the damages sustained by the patient from the injury. The term accident, as here used, necessarily excludes the idea of negligence on the part of the practitioner. Merely calling an act, which resulted in injury to another, an acci- dent, will not relieve the party of responsibility for his negligence. The untoward result must have been what, in law, is recognized as an acci- dent. Definition. — The Century Dictionary defines accident as "anything that happens or begins to be, without design, or as an unforeseen effect ; that which falls out by chance; a fortuitous event or 33 Lenark v. Dougherty, 153 111., 163, 165 ; Jefferson Ice Co. v. Zwicokoski, 78 111. App., 646; Fowler v. Sergeant, 1 Grant's Cases (Pa.) 355; Hess v. Lowrey, 122 Ind., 225; Freeman v. Hutchinson, 15 Ind. App., 639. 38 DENTAL JURISPRUDENCE circumstance." Where an event takes place, the real cause of which cannot be traced or is, at least, not apparent, it ordinarily belongs to that class of occurrences which are designated as purely ac- cidental. 34 Even though accident and negligence be not opposites, they cannot be regarded as iden- tical, without confounding cause and effect. Ac- cident and its synonyms, casualty and misfor- tune, may proceed or result from negligence or other causes known or unknown. 35 Where the negligence of the operator contributed to the un- toward result, it was not, as to him, an accident within the meaning of the law of negligence. There must be an entire absence of negligence on the part of the party sought to be charged. 36 For a purely accidental occurrence causing dam- age, without fault of the person to whom it is attributable, no action will lie; for, though there is damage, the thing amiss, — the injuria — is want- ing. 37 Accident and Negligence. — An occurrence which, to the patient, may properly be spoken of as an accident, is not necessarily an accident, from the viewpoint of the responsibility of the practitioner. If the latter was at fault, the oc- currence, as to him, was not an accident. Where an accident, combined with the negligence of the 34 Wabash, etc., R. Co. v. Roclte, 112 Ind., 404. 35 McCarthy v. N. Y., etc., R. Co., 30 Pa. St., 347, 351. 30 Sutton v. Boimett, 114 Ind., 243. 37 Cooley on Torts, 80. MALPEACTICB 39 practitioner to produce the injury to the patient, and without which negligence the injury would not have happened, the former is liable for the entire damage. 38 Gratuitous Services. — Kesponsibility is not de- pendent upon nor related to the size or source of the fee. Where the relation exists, the liability attaches. When a professional man undertakes to render professional services to a patient, the law, from necessity, imposes upon him the duty to exercise ordinary skill, care and judgment, and default therein, resulting in damage to the pa- tient, constitutes a cause of action. Therefore, that the services were rendered gratuitously or were paid for by a third party is no defense to an action for malpractice. 39 Arbitrary Refusal to Take Case. — Since a pro- fessional man is not required to render profes- sional services to everyone, he may arbitrarily re- fuse to undertake the treatment of a case and, in such event, he will not be liable for malpractice whatever may be the consequence to the appli- cant. 40 The case last cited was an action under a statute based upon Lord Campbell's Act, giving a right of action for wrongfully causing the death 38Rockfalls v. Wells, 169 111., 224; Weick v. Lauder, 75 111., 93; I. C. R. Co. v. Siler, 229 111., 390; Joliet v. Verley, 35 111., 58; Car- terville v. Cooke, 129 111., 152; Joliet v. Shufeldt, 144 111., 403. 39 Peck v. Hutchinson, 88 la., 320; Pippin v. Sheppard, 11 Price, 400; Becker v. Janinski, 15 N. Y. Supp., 675; DuBois v. Decker, 130 N. Y., 325. 40 Hurley v. Eddingfield, 156 Ind., 416. 40 DENTAL JURISPRUDENCE of a person. Suit was brought by the adminis- trator of a deceased person against a physician charging him with wrongfully causing the death of the intestate, and demanding ten thousand dol- lars. The defendant was a licensed physician who was, and for a number of years had been, practicing medicine in the locality and who held himself out to the public as a general practitioner in that profession. He had previously been the family physician of the deceased. It appears that the decedent became seriously ill and sent for the defendant, by a messenger who informed the de- fendant of the extreme sickness of the decedent, tendered him his usual fee for services and stated to him that no other physician was procurable at the time, and that decedent was relying on him for professional attention and services. In fact, no other physician was procurable at the time and decedent did rely upon the defendant for profes- sional assistance and relief. Without any reason whatever the defendant refused to accept the call or render aid to the decedent. No other patients were requiring his immediate attention and he could have responded to the call without incon- venience. Death ensued without the fault of the decedent and, in the complaint, it was alleged to have been caused solely from the act of the de- fendant in refusing to accept and respond to the call. It appears to have been conceded by the plaintiff that there is no common law liability on MALPKACTICE 41 the part of the physician to render professional services to all who apply and, therefore, this ques- tion was not directly before the court. The real contention of the plaintiff was that the statute, re- quiring parties who desire to practice medicine to procure a license, implied that obligation. The statute in force at the time provided for a Board of Examiners, standard of qualification, examina- tion of applicants, license to those found qualified, and prescribed penalties for practicing without a license. The court held that the statute is a pre- ventive, not a compulsive, measure ; that in obtain- ing permission from the State to practice medi- cine, the licensee does not engage that he will practice at all, nor does he promise to render the services on any other terms than he may choose to accept or adopt, and that by the fact of issuing a license, the State does not require that the licen- see shall in fact practice the profession, neither does it stipulate that he must serve all who need him. Civil Rights Acts. — Ptjbpose. — The Civil Eights Acts of the various states are intended for the protection of all citizens in their civil and legal rights, their general purport being to entitle all persons within the jurisdiction of the state, re- gardless of color or race, to the full and equal enjoyment of all the accommodations, advantages, facilities, conveniences and privileges of inns, res- taurants, eating houses, barber shops, public con- 42 DENTAL JURISPRUDENCE veyances on land and water, theatres, and all other places of public accommodation and amusement, subject only to the conditions and limitations es- tablished by law, and applicable alike to all citi- zens, irrespective of race, color or previous condition of servitude. 41 Social and Professional Relations. — The busi- ness to which these statutes apply must be of a public character; the statutes do not attempt to control the conduct of the citizen in his private matters. The statutes do not attempt to confer equality of social rights or privileges or enforce social intercourse. The only effect of the 13th and 14th amendments to the Federal Constitution, and of the statutes passed in pursuance thereof by Congress and the several states, is to place all citizens on an equality before the law. 42 Dentists Not Included. — These statutes and amendments do not require a dentist to undertake the relation of dentist and patient with a party, re- gardless of race, color or previous condition of servitude. They do not attempt to abridge his right to determine with whom he will contract and for whom he will render services. While he may hold himself out as ready to accept as pa- tients all persons presenting themselves for that purpose who need his services, still his work, be- 41 Baylies v. Curry, 128 111., 287. *2 Ganaway v. Salt Lake Dramatic Asso., 17 Utah, 37; Civil Rights Act, 1 Hughes (U. S.) 541; Coger v. N. W. Union Packet Co., 37 la., 145; People v. Washington, 36 Cal., 658. MALPEACTICE 43 ing professional in character, is not sufficiently public in its nature to bring it within the provi- sions of these statutes. Wrong Diagnosis. — Generally speaking, li- ability for malpractice attaches by reason of im- proper treatment rather than from any mistaken diagnosis. The patient is not materially con- cerned in what the practitioner thinks his trouble to be, except as his conclusion takes concrete form by treatment for the supposed malady. 43 A wrong diagnosis, not followed by improper treat- ment and injury to the patient, is not sufficient to predicate an action for malpractice, 44 but where the sole purpose of the employment is the diag- nosis and report of the same, negligence or bad faith in making the examination, resulting in a wrong conclusion and erroneous report, and con- sequent damages to the patient, constitutes a cause of action. 45 In the case last cited a young man was engaged to be married but the father of the girl refused his consent because of rumors that the fellow was afflicted with a venereal disease. He denied the charge and agreed with the father to submit to an examination by a physician selected by the father at the latter 's expense. The ex- amination was made and the physician reported that the fellow had such a disease. In conse- quence, the engagement was broken off and the 43 Grainger v. Still, 187 Mo., 197. 44 Tomer v. Aiken, 126 la., 114. 45 Harriott v. Plimpton, 166 Mass., 585. 44 DENTAL JURISPRUDENCE fellow brought various suits for conspiracy, slan- der and malpractice against the father, physician and others. On trial the suits were consolidated. It was found that the young man was not dis- eased ; that the father and physician acted in good faith and that there was no conspiracy. There was technical defect in the pleadings in the slan- der suits and, therefore, liability on that score was not considered. In the suit for negligence or malpractice against the physician, the trial court instructed the jury to find a verdict in favor of the defendant, to which the plaintiff excepted and, on appeal, the supreme court said: "The verdict in the action for negligence must be set aside. The evidence tended to show that the defendant was employed by Morrill (the father). Having undertaken for compensation to be paid by another, to examine the plaintiff, and to report whether he was diseased, the defendant was bound to have the ordinary skill and learning of a physician, and to exercise ordinary diligence and care; and if he failed, and the plaintiff was injured because of his want of such skill and learn- ing or his want of such care, the defendant was answerable to him in damages. ... In our opin- ion, the fact that the purpose of the examination was information, and not medical treatment, is immaterial; and the breaking of the plaintiff's marriage engagement, in consequence of the wrong diagnosis, was not too remote a damage to sustain MALPRACTICE 45 the action. Upon the evidence, it was for the jury to say whether the defendant used ordinary care, learning and diligence. ' ' 46 Damages. — The damages which a patient may recover are those growing out of the injury result- ing from the negligence, but not for any loss sus- tained by reason of the original disease or condition. He may show his pecuniary loss direct or indirect, impaired earning capacity, loss of time and its value, actual expenses incurred and pain and suffering, even up to the time of trial, any disfigurement of person resulting from the mal- practice, permanency of the injury resulting there- from, and the station and condition in life of the patient, mental worry, anxiety, discomfort, morti- fication and chagrin, by reason of the injury from the malpractice. 47 Burden of Proof. — Questions which are suscep- tible of exact demonstration or absolute deter- mination, are not often the subject of litigation. 48 Preponderance oe Evidence. — A preponderance of the evidence is all that is required of the plain- tiff in an action for malpractice. It is not neces- sary to prove the negligence of the practitioner beyond a reasonable doubt, nor by evidence suffi- cient to establish a clear conviction thereof in the minds of the jury. 49 46 Harriott v. Plimpton, 166 Mass., 585. 47 Chamberlain v. Porter, 9 Minn., 244; Tifft v. Wilcox, 6 Kan., 46; Cody v. Weins, 1 Mont., 424; Coombs v. King, 107 Me., 376, 380. 48 Boucher v. Larochelle, 74 N. H., 433. 49 Hoener v. Koch, 84 111., 408. 46 DENTAL JURISPRUDENCE Excluding all Probable Causes. — It is not necessary to exclude every possible cause for the injury, except the negligence of the practitioner, it being sufficient to show that the wrongful treat- ment was the probable cause. The jury is not permitted to determine by mere conjecture be- tween two equally probable causes of the injury complained of, for only one of which the practi- tioner is responsible. 50 But the patient makes out his case under such circumstances, when he has shown that it is more probable that the cause for which the practitioner was responsible is the one that was the proximate cause of the untoward re- sults. 01 Excusing Cause Must Be Conceded or Proved. — The rule that the jury cannot be permitted to determine by guess or mere conjecture be- tween two equally probable causes of the injury, for only one of which the practitioner is respon- sible, has no application unless the existence of a sufficient cause or causes for the injury, aside from the negligence charged, is conceded or conclusively proved. 52 Infection Following Treatment. — Proof of an infection following treatment or operation does not discharge the burden resting upon the patient to establish liability of the practitioner, but he must introduce at least some evidence tending to 50 Deschennes v. Concord R. Co., 69 N. H., 285. 51 Boucher v. Larochelle, 74 N. H., 433; 15 L. R. A., 416. 52 Boucher v. Larochelle, 74 N. H., 433. MALPBACTICE 47 show that the practitioner was to blame and that it is at least probable that the untoward result was due to the improper conduct of the latter, and might not have happened but for such con- duct. 53 Anesthetic. — (1) Failure to Administer. — Fail- ure or refusal to administer an anesthetic is not ground for an action for malpractice. 54 (2) Negligence or Other Cause. — Where the death of a patient might have been caused by the im- proper administration of an anesthetic by the practitioner, or calcareous degeneration of the heart, the practitioner is not liable unless it is made to appear from all the evidence that the death resulted either wholly, or in part, from the improper use or administration of the anes- thetic. 55 Mistake in Diagnosis. — A mere mistake in diag- nosis, not accompanied by improper treatment for the real trouble, will not render the practitioner liable. 56 Partners. — Partners in the actual practice of a profession are liable for the independent malprac- tice of either. 57 Independent Acts. — One practitioner is not li- able for an injury inflicted by another, if not part- 53 Ewing v. Goode, 78 Fed., 443. 54 Dye v. Corbkt, 59 W. Va., 266. 55Yaggle v. Allen, 48 N. Y. Supp., 827. 56 Red Cross v. Green, 126 111. App., 214. 57Hyrne v. Erwin, 23 S. C, 226; Whittaker v. Collins, 34 Minn., 99; Hess v. Lowrey, 122 Ind., 225. 48 DENTAL JURISPRUDENCE ners, unless they acted in concert or cooperation. Where their acts are entirely independent, sepa- rate and distinct as to aid, concert, cooperation and advice, there can be no joint liability and each will be liable only to the extent of his own wrong. 58 Matron, — Assistant, — Apprentice. — A practi- tioner is liable to his patient for damages resulting from the negligence of his attendant or apprentice whom he permits to assist him in his work. 59 The assistant is also liable for his own negligence. 60 Death from Malpractice. — Common Law. — At common law no action lies for damages caused by the death of a human being, by the wrongful or negligent act of another, in favor of the heirs, distributees or personal representatives of the de- cedent. 01 Statutes. — In 1846 the British Parliament passed a statute familiarly known as Lord Camp- bell's Act, in words inter alia as follows: "That whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereto, then and in every such case, the person who would have been liable if death had not en- 58 Teazel v. Alexander, 58 111., 254, 262; Barnes v. Means, 82 III., 379. 59 Hancke v. Hooper, 7 C. & P., 81 ; Chicago R. Co. v. Flexman, 103 HI., 546. 60 Reed v. Patterson, 91 111., 288, 297. ei Holton v. Daly, 106 111., 131, 136. MALPEACTICE 49 sued, shall be liable to an action for damages, not- withstanding the death of the person injured and, although the death shall have been caused under such circumstances as amount, in law, to a felony. ' ' The act then provides that the action shall be brought for the benefit of the wife, husband, par- ent and child of the deceased in the name of the personal representative of the deceased. This statute has been enacted, with slight modifications and additions, in all the states and wherever such statute is in force a practitioner is liable for all damages sustained by the beneficiaries, in case the death of his patient results from his malpractice. Damages. — In these cases, where the benefi- ciaries are lineal kindred of the deceased, the damages which are recoverable are usually limited to the pecuniary loss sustained by such bene- ficiaries. 62 Criminal Liability. — In case of gross negligence of a practitioner, resulting in the death of his pa- tient, he may be guilty of manslaughter. In order to sustain the action, gross incompetency or reck- less inattention or indifference must be shown. An inadvertent mistake, a mere error of judg- ment, an inability to master unforseen conditions will not be sufficient to predicate such liability. 63 In case of criminal negligence, where death does not result, the practitioner will be guilty of a mis- 62 Chicago, etc. v. Kelly, 182 111., 267. 83 Com. v. Pierce, 138 Mass., 165. 50 DENTAL, JURISPRUDENCE demeanor. 64 The practitioner's real intention is immaterial. He is presumed to intend the reason- able and probable consequences of his acts. 65 04 State v. Reynolds, 42 Kan., 320; Hyatt v. Adams, 16 Mich., 198. 65 See Stehr v. State, 92 Nebr., 755. Cf. contra, Com. v. Thompson, Mass., 134. CHAPTER IV EES IPSA LOQUITUR Presumption. — Definition. — A presumption is a hypothetical or inductive inference; something that is supposed to be true upon grounds of prob- ability. Presumption is an inference as to the ex- istence of a fact from the existence of some other fact or facts based upon previous experience of their connection, implying relation or association, or dictated by the policy of the law. Presump- tions are inferences in accordance with the com- mon experience of mankind and the established principles of logic. The strength of a presump- tion is dependent on the closeness or uniformity of association of the given fact or facts with the fact inferred. Thus, from the fact that the ground is wet, the presumption that it has rained will be strengthened according as the appearance of the ground, the extent of the wet area and other incidents exclude other causes for the condition. Presumptions of (1) Fact and (2) Law. — Writers speak of presumptions of fact and pre- sumptions of law, and divide the latter into dis- putable and indisputable presumptions. Pre- sumptions of law are only strong presumptions of fact. Where public policy or welfare are in- 51 52 DENTAL JURISPRUDENCE volved, these strong presumptions of fact are usually indisputable presumptions of law. Thus, rational men usually intend the reasonable and probable consequences of their conscious acts and, therefore, where the act is wrongful, the law in- disputably presumes such intent. A party will not be permitted to show that he really intended otherwise. An act is inevitably characterized by its consequences, when reasonable and probable, regardless of the real intent of the actor. In this connection we are interested only in certain pre- sumptions of fact in which no questions of the policy of the law are involved. They are only the application of the principles of logic to the ascertainment of facts which are the subject of in- quiry in judicial tribunals. The Maxim. — Res ipsa loquitur is a well recog- nized principle of the law of negligence. Broadly stated, it means the thing speaks for itself. It is a departure from the harshness of the common law, in that it shifts the burden of explanation from the party complaining to the party who naturally is in the best position to know the facts. The party against whom it operates must owe the injured party some general or special duty of protection or care, and that duty must have been violated. The fact must be such as, in the absence of ex- planation, naturally raises an inference of negli- gence on the part of some one, in which event the party owing the duty is charged with the burden RES IPSA LOQUITUR 53 of showing that the occurrence was without his fault. It has been said that this phrase is often used in actions for injury by negligence when no proof of negligence is required beyond the oc- currence itself, which is such as necessarily to in- volve negligence. 1 Application of the Maxim. — The doctrine was first applied to a case where a traveler on a public highway, while passing in front of a building, ad- joining the same, was injured by a barrel roll- ing out of a second-story door. Barrels, when properly placed, do not, of their own volition, change their position and, as the owner of the property adjoining the highway owed a person, rightfully using the same, the special duty of so using his property as not to injure the other, the court said that the burden of explaining the cir- cumstances under which the barrel fell, should be upon the owner of the property, as he was in the best position to know the circumstances leading up to the accident and injury. 2 As stated by one authority, the occurrence itself is evidence of neg- ligence. 3 The doctrine has also been applied to a case where a pedestrian on a sidewalk in a city was injured by a hammer falling from a swinging scaffold which was being used by workmen in front of the building. 4 The inference would not have 1 Bouvier Law Dictionary. 2 Byrne v. Boadle, 2 H. & 0., 722. 3 Cunningham v. Dady, 191 N. Y., 152, 155; Ennis v. Gray, 87 Hun. (N. Y.) 355, 361. 4 Hunt v. Hoyt, 20 111., 544. 54 DENTAL JUKISPRTJDENCE arisen in the original case if the evidence had left it uncertain from which of two doors, on different premises, under different control and ownership, the barrel fell. If, from the evidence, the hammer might have fallen indifferently, either from a scaf- fold under the control of A, or from a scaffold under the control of B, there can be no presump- tion that either A or B specifically was negligent. There must be at least a preponderance of the evi- dence that it came from one rather than the other. Burning a patient by X-ray is prima facie evi- dence of negligence. 5 Sponge Cases. — This doctrine is illustrated in the case where absorbent gauze or sponges, or other foreign bodies, are left in the abdominal cavity after an operation. The presence of the intruder imjDels the unbiased mind to the infer- ence that the surgeon in charge was negligent and, because of that inference, the law casts on him the burden of showing that he was without fault. Of all persons, he ought to know why the foreign substance was left there. The broad equi- ties of the case demand that he be called upon to explain the occurrence and show, if he can, that he did all that could be done under the circum- stances to find and remove all foreign objects. Neither will an explanation that merely shifts the blame on others suffice. In the language of one of our courts — 6 Shockley v. Tucker, 127 la., 456. RES IPSA LOQUITUR 55 "Why was there left in the parts a foreign substance which the operating surgeon should have removed? It was for him to acquit himself of negligence with respect to it. The sponge es- caped his observation. Why? Was it so hidden and concealed that reasonable care on his part would not have disclosed it, or were conditions such that, in his professional judgment, further exploration by him for sponges would have en- dangered the safety of the patient? In a word, did he do all that reasonable care and skill would require? Except as one or the other of these questions can be answered affirmatively, from the evidence, the law will presume to the contrary and attribute the unfortunate consequences to his con- tributing negligence. Neither does the defendant, nor a single witness in his behalf, undertake to give any explanation of the fact that a sponge, which the defendant should have removed, was allowed to remain, except to say that the nurses failed to keep accurate count. From all that appears in the case, the retained sponge might readily have been discovered by the surgeon, and reasonable pru- dence and care on his part would have avoided the accident. If this were so, clearly his negli- gence contributed with that of the nurses and re- sponsibility therefor, in law, attached. ' ' 6 Dental Cases. — Leaving part of a brooch in a 6 Davis v. Kerr, 239 Pa. St., 351. See Palmer v. Humiston, 87 Ohio St., 401; Gillett v. Tucker, 67 O. St., 106. 56 DENTAL JURISPRUDENCE tooth and closing up the cavity, should trouble afterwards result therefrom, would cast upon the operator the burden of showing that he was with- out fault in the premises. The presence of the broken end of the brooch requires an explanation from the person responsible for its presence, and a failure in this respect rightfully fixes his re- sponsibility. 7 A complete fracture of the sub- maxillary, while extracting a tooth, is of such rare occurrence, where proper care is exercised, as to raise a presumption of negligence on the part of the extractor, and the law should impose upon him the burden of showing that he exercised due and reasonable care and skill under the circum- stances. Others Involved.— Where the evidence leaves it uncertain, whether the foreign body was left in the cavity by the operating surgeon at the time of clos- ing the incision from the original operation, or was put in afterwards by others, independent of the operator, in the course of drainage, the doc- trine would not apply. 8 In the case last cited there was evidence tending to show that the sur- geon should have discovered the gauze during his course of treatment after the operation and before the termination of the relation. Infection. — Ordinarily the sequence of an aggra- vated condition, does not raise any presumption 7 Van Skike v. Potter, 53 Neb., 28. 8 Harris v. Fall, 177 Fed., 79; 27 L. R. A., 1174. KES IPSA LOQUITUB 57 of improper treatment. Where a condition can be explained by either of several causes, its pres- ence proves neither. Thus, the presence of infec- tion following dental treatment does not, of itself, prove that the dentist was at fault, because the trouble may have been introduced by other means, either before or after the services. 9 Evidence must be produced to connect the treatment with the untoward result. Proof that the dentist had previously treated a patient similarly afflicted and neglected to disinfect his hands and instruments before undertaking the treatment complained of, might be sufficient to cast the blame upon him. However, we are now discussing presumptions, not the weight of evidence. Leaving a tooth go down the windpipe of a pa- tient who is under the influence of an anesthetic raises a presumption of negligence on the part of the operating dentist and casts upon him the bur- den of showing that the incident occurred without his fault. 10 9 Ewing v. Goode, 78 Fed., 442. lOKeily v. Colton, 1 City Ct. (N. Y.) Cal. App., 50. CHAPTER V DENTITION Development of the Teeth.— An examination of the teeth of a child will give a reasonably accurate idea of its age. The two lower middle incisors usually appear before the child is seven months of age. The four upper incisors usually appear at about the age of nine months and almost invariably before eleven months. At the age of twelve months the four lower incisors and the four an- terior molars have appeared. The four canine teeth usually appear when the child is about eight- een months of age and are seldom ever delayed beyond twenty-one months. The entire tempo- rary set is usually erupted before the child attains the age of thirty months. According to Saunders, before the appearance of the permanent teeth and the loss of the temporary set, the child's jaws contain forty-eight teeth, twenty temporary fully developed and twenty-eight permanent in the proc- ess of development. The presence of forty-eight teeth in the alveoli of the jaws of a skeleton would fix the age at between six and seven years. The permanent teeth number thirty-two and appear in the following order : 58 DENTITION 59 1. The 4 anterior molars, at the age of about six to seven years; 2. The 4 middle incisors, two in the upper and two in the lower, at the age of seven to eight years ; 3. The 4 lateral incisors, at the age of eight to nine years; 4. The 4 biscuspids, at the age of about ten years ; 5. The 4 pre-molars, at eleven to fifteen years ; 6. The 4 canines, at the age of about eleven to thirteen years; 7. The 4 second molars, between the ages of twelve and seventeen years ; 8. The third molars are exceedingly irregular in their eruption but may be expected about the 21st year, though they frequently delay many years thereafter. At seven years of age there may be 4 permanent teeth, namely, 4 first molars; at nine there will generally be 12, namely, 8 incisors and 4 first molars ; at thirteen there will be 20 to 24, namely, 8 incisors, 4 canines, 4 bicuspids, 4 first molars, and probably 4 pre-molars. In examining 1,046 children, Mr. Saunders found that out of 708, known to be nine years of age, 389 had the full development of teeth for that age. In counting, he considers that where the teeth on one side are fully developed those of the other side should be counted also, and, with this correction, 530 came up to the standard. Of 60 DENTAL JURISPRUDENCE the remainder, none would have varied more than a year from the standard, and the variation was invariably by deficiency. Of 338 children of thir- teen years of age, no less than 294 might, from their teeth, have been pronounced to be of that age. Thirty-six of the remainder would have been judged to be in their 13th year, and eight at or about the completion of the 12th year. Identification by Means of the Teeth. — The teeth are among the last parts of the body to decompose, and, therefore, since no two mouths are exactly alike in all respects, the teeth and jaws furnish good and, sometimes, indisputable means of iden- tifying a skeleton or a corpse. Criminal reports abound in instances in which the oral organs were important factors in determining the identity of a person or of a body. Therefore, it is advisable that, in case of the discovery of a corpse or skele- ton whose identity should be determined, and where the cause of death may later become a sub- ject of legal inquiry, a most minute investigation of the mouth should be made and a written memo- randum taken, at the time, of all observations, and particularly a cast of the mouth ought to be taken, if practical. Cases of doubtful identity have fre- quently been settled by casts of the mouth taken before death, by dentists, and such cases may arise at any time. In this connection, many questions, some intricate and speculative, may arise relative to the facts observed, and the investigation should DENTITION 61 be made with a view of furnishing satisfactory data for an opinion on any subject which may reasonably be anticipated. Whether teeth which are wanting in a corpse or skeleton were lost be- fore or after death; if before, then how long be- fore; the cause of a certain condition observed, or whether such condition could have been pro- duced by such and such means, or is the result of disease, or existed prior to death, or was caused after death, etc., etc., and numberless other ques- tions which should occur to the careful observer, should challenge the attention of the investigator. CHAPTER VI ANESTHETICS Definition. — Anesthesia means a loss of sensi- bility to external impressions; in a technical and restricted sense, a loss of the sense of touch. Fre- quently, however, it is a general term used to de- note all classes of insensibility. The agent which produces anesthesia is termed an anesthetic ; there- fore an anesthetic is any remedy used to relieve pain or other hyperesthetic condition of the sen- sory nerves. Kinds of Anesthetics. — There are two principal groups of anesthetics when classified according to the nature of their effects (1) Local, as affecting a restricted area or part of the body, and (2) General, as affecting the entire body. Cold is one of the most useful and generally em- ployed local anesthetics. This condition is now usually brought about by the use of ether or ethyl chloride, as a spray. Local anesthesia is fre- quently produced by the use of cocaine, eucaine, holocaine and orthoform. Some of the more com- mon general anesthetics are ether, chloroform, nitrous oxide, antipyrine, acetanilid, etc. 62 ANESTHETICS 63 Chloroform should not be given where there is weakened heart action from disease. Where there is chronic or severe kidney trouble an anesthetic should not be given unless absolutely necessary. Responsibility in Administering Anesthetics. — In administering an anesthetic agent for the pur- pose of his professional duties a practitioner is bound, in law, to look only to natural, ordinary, usual and probable consequences. Conversely, he is not answerable in malpractice for failing to an- ticipate results arising from a peculiar condition or temperament of his patient, of which, in the ex- ercise of reasonable skill and care, under the cir- cumstances he had no knowledge. "Where the administration of an anesthetic is necessary or ad- visable for professional purposes, and objection to its administration not appearing or being discover- able by careful and skillful diagnosis, he is not liable for resulting damages unless at least two facts coexist, namely : 1. That he was guilty of negligence in reference to the administration of the anesthetic, and 2. That the injury of which the patient com- plains was the result of this negligence in the use of the anesthetic. The negligence in the administration of the an- esthetic may have consisted in administering it without sufficient preliminary examination, or in administering an unfit and unsuitable drug, or in 64 DENTAL. JURISPRUDENCE the unskillful or careless manner of administra- tion, or in the excessive amount given. 1 Extreme Responsibility in Fact. — In dealing with anesthetics, the practitioner must know that he is using instrumentalities which are dangerous and deadly, and his care must be in proportion to the risk involved to his patient. His responsi- bility begins with the examination preceding the administration of the drug and carelessness re- sulting in the determination to use the same when clearly it should not have been given will make him liable in malpractice for resulting injuries, and, possibly, for manslaughter, where the conse- quences are death. He cannot trifle with the health or life of his patient and not shoulder the responsibility. 2 Effects of Anesthetic. — In cases of anesthesia from the administration of a general anesthetic the following propositions of fact may be said to be established by the consensus of medical expe- rience and opinion : 1. Consciousness of external impressions is im- paired in the early stages. 2. This impairment is progressive. 3. The impressions which reach the mind dur- ing the progress of anesthesia are distorted and sometimes perverted. 4. Consciousness of external impressions is en- tirely lost in the final stage. 1 Bogle v. "Winslow, 5 Phila., 136, 2 State v. Baldwin, 3/5 Kan., 1. ANESTHETICS 65 5. Voluntary muscular movement is not lost un- til the final stage. 6. Emotions of an erotic character are often ex- cited. 7. Memory of events occurring during the prog- ress of anesthesia is distorted and sometimes wholly unreal. 8. Dreams are sometimes experienced. 9. The impressions left by these dreams remain fixed in the mind with all the vividness of real events. 3 Value of Testimony. — The fact that, during the last stages of anesthesia, the mind is entirely lost to outward impressions, and the entire sensory nervous system has suspended its functions, should be sufficient to stamp with great uncer- tainty the statement of a person as to what oc- curred to him while under the general influence of an anesthetic, when the statement is based upon his alleged sensations at the time ; therefore, when to actual mental suspension there is added possible hallucinations and self-deception of a character similar to the alleged experience, the testimony has but few elements entitling it to credit. Mani- festly, but little reliance can be placed upon sup- posed impressions alleged to have been received during the time. Rape. — Definition. — Eape is the carnal knowl- edge of a female forcibly and against her will. > Wharton & Stille: Med. Jurisp. 66 DENTAL JURISPRUDENCE This is regarded as a most brutal crime and the penalty in all civilized communities is justly se- vere. On the high seas and in all places within the exclusive jurisdiction of the United States, it is punishable by death. The Force. — The kind and degree of force used is not material, if it be sufficient to overcome re- sistance. It may be physical violence, fraud, in- timidation by threats and through fear of personal injury or public scandal, the administration of drugs or gases producing anesthesia or exciting sexual passions, taking advantage of natural sleep, hypnotic influences, or any of the countless arti- ficial means whereby a female's power or desire to resist may be overcome. The gist of the of- fense is the having sexual intercourse without her consent, or at a time when, because of a natural or artificial, permanent or transient, mental con- dition, she was incapable, in fact or in law, of giving consent. Purpose of Anesthetization. — Since deflora- tion of a female under the influence of an anesthet- ic is rape, and the gravamen of this offense is the violation of the person, the intent with which or the person by whom the anesthesia is induced is unimportant. Whether the stupefaction was brought about at her request to relieve pain of a dental operation, or without her consent to excite her sexual passions, leading to voluntary submis- ANESTHETICS 67 sion, or to overcome her power of resistance to the assault, the offense is rape. Ujstchastity of Female. — The previous unchas- tity of the woman is immaterial, except as it affects her credibility, where the act is denied, or bears upon the presumption of consent, where the act is admitted. 4 Right to Administer. — Instruction on the sub- ject of anesthetics and in the methods of adminis- tering them is included in the curriculum of every reputable school of dentistry. The right to ad- minister an anesthetic in a proper case is implied in a dental degree. Though the necessity for re- sort to the drug is not the same as in general sur- gery, the use of anesthesia is recognized as a distinct equipment of the dental profession, and as essential to the successful performance of his work in certain cases. If there is any reasonable justification in fact for resorting to the expedient, considering the nature of the operation and the condition of the patient, and the patient desires or consents to the same, the practitioner may employ it in connection with his professional services, and he will not be answerable for untoward results merely by reason of the fact of having admin- istered the drug. The law indulges no presump- tions, either of ignorance or skill. If the plaintiff alleges ignorance in the matter of administering the anesthetic, as the basis of his right of action, 4 Carney v. State, 118 Ind., 525; Maxey v. State, 68 DENTAL JURISPRUDENCE he must prove his allegation or lose his case. If he offers no proof of ignorance, there is nothing on which to found his charge, since the law does not presume that the practitioner was ignorant. If the patient introduces evidence sustaining his allegation, the practitioner must show that the an- esthetic administered, and the method of adminis- tration were in accordance with the teaching and practice of the profession. In practice a dentist is not likely to be charged generally with being ignorant. Such an allegation might be extremely difficult to prove and, even if proven would avail the patient nothing unless he also proved that, by reason of that ignorance, he was injured. The want of skill must have been manifested in the par- ticular case. Ignorance must be translated into action or non-action before the patient can com- plain. The conduct, not the ignorance, is the real ground of complaint. The practitioner may be generally ignorant and unskilled but may do right by chance, accident or mistake. Why should the patient complain ? He may be ever so skilled and do wrong through negligence, and thereby injure his patient. Why should the patient not com- plain? CHAPTEE VII CONSENT TO OPERATION Consent Necessary. — Consent of the patient is indispensable to the justification of a dental or surgical operation. It is an absolute right of the patient to determine what he wants done, and his will must prevail. Motive. — An unauthorized operation is a tres- pass regardless of the motive which prompted the operator. The basis of the liability is the wrongful invasion of the person, and proper motive is neither justification nor excuse for the assault. The dentist who extracts a tooth without the con- sent of his patient is in the same category tech- nically as the bully who removes it with a blow. The only relation of motive to the offense is its effect on the damages to be recovered. Where the motive was good the law allows only compen- satory damages, but never less than nominal, while in a case involving evil motive, the injured party may recover punitive damages in addition to his actual loss. Implied Consent. — The presence of a patient in the chair of a dentist presupposes a desire to have some service rendered, but it does not indicate a 70 dental; jurisprudence desire to have any particular operation performed or course of treatment undertaken ; but knowingly submitting to a particular operation or course of treatment, by an adult, implies consent thereto. Where a patient, without objection, voluntarily submits to an operation, or a course of treatment, his specific consent will be presumed as such con- duct is prima facie evidence of his consenting mind. 1 Scope of Consent.— It is for the practitioner to examine, consider and recommend; it is for the patient to determine. In cases of the extraction of teeth and the substitution of plates or bridges, the wishes of the patient must be observed. The operation should be confined to the specific serv- ices agreed upon. Consent to extract one tooth is not authority to eliminate two or more, and con- sent to the removal of a particular denture does not justify the extraction of a different member, even though the latter more emphatically requires removal. It is the patient's, not the dentist's mouth that is being operated upon, and the former is the party for whom the services are being ren- dered. His final determination must be respected even though it be clearly wrong. The only alter- native to obeying that conclusion, when expressed, is to refuse to operate at all and discharge the pa- tient. Usually the patient will accept and follow the advice of his dentist, given in good faith after i State v. Housekeeper, 70 Md., 162. CONSENT TO OPERATION 71 proper diagnosis and consideration; but when he will not do so his wishes must control in all opera- tions undertaken. Merely because the practi- tioner's judgment ought to be better than the judg- ment of his patient is no sufficient reason why the judgment of the former should prevail. This ap- plies with special force where the services result in extensive changes in the oral cavity. However, a dentist is not always justified in doing what his patient asks him to do. A party suffering a tooth- ache may not be in a mental attitude or physical condition to determine what is best. His desire is to be relieved of pain by the shortest route and, therefore, would naturally consider a permanent cure the most desirable consummation. Unless, on diagnosis, extraction is indicated, the operator should refuse to remove the offending member. By a simple treatment he may be able to accom- plish all the sufferer desires, and the tooth may thus be saved for future usefulness. Further- more, he will not be liable for malpractice for the mere fact of relieving the pain by treatment rather than by extraction, especially if he advises his patient that he has not removed the offender. However, having in good faith given proper ad- vice, which the patient refuses to adopt, the den- tist will not be liable in damages for doing, in a proper manner, what he was requested to do, provided, always, the patient was in law compe- tent at the time to determine for himself. 72 DENTAL JURISPRUDENCE More Than One Method.— Where either of two or more courses may, with equal propriety, be pur- sued, the practitioner should counsel and recom- mend to the patient what should be done, but should finally adopt the method selected by the pa- tient. If the latter refers the question back to the operator he should follow the course which in his best judgment is preferable, under all the circum- stances, and will be liable in damages only in case of negligence, even though another practitioner would have recommended a different course. Emergency. — The surgeon is sometimes con- fronted with an emergency requiring immediate operation, under circumstances where express con- sent is impossible, as in case where a party is un- conscious from an injury, where no one is present who, in law, might be presumed to have authority to speak for him. In such a case the consent of the patient, if an adult, or of the parent, if the patient is a minor, is presumed. Here the con- sent, given only to the performance of the usual and ordinary operation to relieve the particular injury and meet the emergency, would not include an operation for some chronic ailment with which the injured party was suffering at the time, unless the same were practically necessary to the skill- ful performance of or recovery from the traumatic operation. Thus, an injury necessitating entering the abdominal cavity for proper treatment and relief would excuse the operator for so doing and, CONSENT TO OPERATION 73 in case the patient is unconscious and the neces- sity of operation imperative, consent therefor will be presumed, ex necessitate; but the circumstances would not carry with it authority to remove a dis- eased ovary, an inflamed appendix, a calcified gall bladder, a tumor or other chronic affliction, unless such operation were reasonably — perhaps abso- lutely — necessary to a successful recovery from the emergent operation. From the very nature of the professional duty, such emergency cases must be of rare occurrence in dentistry. Whose Consent. — In case of an adult, not under mental disability, his consent alone is sufficient to justify a dentist in performing any reasonable operation within the scope of his profession and employment. Consent of the parent is usually necessary to authorize work of a radical nature on a minor. A person standing in the relation of a parent would be qualified to authorize the serv- ices and relieve the dentist of a charge of trespass for performing the work. When the minor re- sides with his parents, an adult sister could not be said to stand in loco parentis and, therefore, her consent would not be sufficient authority. 2 Extent of Consent. — Consent to an operation ne- cessitating a general anesthetic does not extend beyond the reasonable limits of the specific relief stipulated or contemplated by the parties at the time the patient goes under the influence of the 2Rishworth v. Moss, Tex., ; 159 S. W., 122. 74 DENTAL JURISPRUDENCE drug. Having permission to perform a given op- eration does not imply consent to an entirely dif- ferent and more extensive invasion of the body. In fact, under the doctrine that the specification of one is the exclusion of others, the right to per- form a different operation would apparently be specifically prohibited. The surgeon or dentist is bound to exercise the utmost good faith and fair dealing towards his patient in this respect and any material deception will convert his efforts into an assault justifying punitive damages, regardless of his real motives. 3 The mere employment of a dentist or surgeon does not give him implied au- thority to do whatever in his discretion he may deem necessary or expedient without consulting the wishes of his patient. Great though his res- ponsibilities and obligations are, and necessarily having an important bearing upon the implied au- thority with which he is clothed, they do not con- fer upon him unlimited, arbitrary and absolute power to treat his patient in accordance with his own judgment without reference to the rights or wishes of the latter. In the case of a surgical operation, it is advisable to get previous authority to perform such operation as, in the judgment of the operator, in the progress of the work, the wel- fare and best interests of the patient require. In the absence of such general and unlimited au- thority, however, it must be conceded that the wel- Pratt v. Davis, 224 111., 300. CONSENT TO OPERATION 75 fare of the patient demands that the operator shall have implied power to deal with unforeseen inci- dents and unexpected conditions as they arise in the progress of the stipulated operation, in such manner as he shall consider proper, and a reason- able departure from the exact purpose and scope of the original operation, for the benefit of the patient, ought not, and as a matter of law does not, make the operator liable for malpractice. Thus, a surgeon diagnoses a patient's trouble as a uter- ine tumor and is engaged to remove it. On enter- ing the cavity he finds the tumor as diagnosed, together with another smaller tumor, both of which can be readily, successfully and safely re- moved in one operation. The patient's welfare and the general, if not the specific, purpose of his employment demand that he remove both without waiting to get the consent of his patient therefor. Eemoving a diseased appendix in the course of an operation for gall stones ought to be considered authorized as within the purview of the primary undertaking. Departure from Agreed Operation.— The opera- tor, however, cannot materially depart from the scope and purpose of the operation originally con- templated without the consent, express or implied, of the patient. Whether there was a material de- parture in this respect is usually a, question of fact for the jury, not of law for the court. The rule announced in Mohr v. Williams, 95 Minn., 261, 76 DENTAL JURISPRUDENCE must be construed as announcing the doctrine that the question of what constitutes an improper de- parture from the agreed operation, is one of fact for the jury and, as so construed, it is a correct statement of the law. In this case the surgeon examined both ears of the patient and advised an operation on the right ear. Later, the patient sub- mitted to an operation for that purpose, and after she was under a general anesthetic and the sur- geon had examined the ear specified, he found that such operation was not imperative at the time but, upon examination of the left ear, found it in such condition as to demand immediate attention. Without waiting for the patient to recover from the anesthetic and getting her consent he aban- doned the operation on the right ear and operated on the left alone. The opinion indicates that the operation was upon the middle ear and was made through the drum from the outside, thus neces- sitating an entirely different invasion of the body to that contemplated in the original undertaking. Later, the patient brought an action for assault and battery. She was successful before the jury and obtained a verdict for $14,322.50. The trial court granted a new trial on the ground that the verdict was excessive, from which order granting a new trial the plaintiff appealed. The defendant further moved for judgment dismissing the suit, notwithstanding the verdict, on the grounds (a) CONSENT TO OPERATION 77 that the patient's consent was not necessary, (b) that the patient did in fact consent to the opera- tion performed, and (c) that the consent of the patient was implied, under the circumstances, but this motion was denied and the defendant ap- pealed. The operation was successfully and skill- fully performed and was of a generally beneficial nature to the patient. There was no bad faith shown on the part of the operator. This case appears to be quite generally misunderstood. The opinion shows a thorough consideration of the sub- ject by the court and is in perfect consonance with the rights of all parties concerned. It is impos- sible to lay down any strict rule for determining what constitutes an improper departure from the original understanding between patient and oper- ator, as each case must depend upon its own spe- cial facts. Hence, where the facts are disputed, the question must generally be one to be settled by a jury, as a question of fact. Prohibited Act. — In no event is the operator justified in performing an operation which the pa- tient has expressly forbidden. He may consider that the health and welfare of the patient de- mand immediate operation, but he has no right to disregard the prohibition of the patient. The ex- pressed wish of the latter is paramount to the discretion of the practitioner. In fact, when the former fixes a condition, the latter has no discre- 78 DENTAL JURISPRUDENCE tion ; he must do as directed or quit the case. In a certain English case 4 which apparently did not go beyond the nisi prius court, a young lady con- sulted an eminent surgeon relative to some ovarian trouble. The latter advised an operation. Be- fore consenting the patient told him that if he found only one ovary diseased he should remove it, but if both were involved he must not remove either. To this express inhibition the surgeon claims to have replied: "You must leave that to me." The patient claims that she did not hear such remark and, of course, in that event, could not have acquiesced therein. Upon opening up the cavity both organs were found to be badly diseased and the surgeon removed them. The patient brought action for damages for operating in violation of instructions. There was evidence to the effect that her health and, possibly, her life required the excision of the organs. There was no claim of unskillfulness or carelessness. The court instructed the jury to find for the sur- geon; thus holding, as a matter of law, that the patient had consented, or that, having consented to an operation of the character in question, it was for the surgeon to determine to what extent he would go in invading her body. Such holding is clearly wrong, as the jury should have passed upon the question as to whether, under the cir- cumstances, the patient did in fact leave the en- 4 Baty v. Cullingworth, decided in London in 1896. CONSENT TO OPERATION 79 tire matter to the discretion of the surgeon. In view of her express prohibition, if she did not hear his alleged reply, and if she did not with- draw her instructions, he was a trespasser ab in- itio, whatever may have been his motives and re- gardless of what he thought her health and welfare required. The ovaries belonged to her, not to him ; whatever right he had in the premises he de- rived by contract with her and, under the circum- stances, the burden was on him to establish his right and authority. Presumptions from General Consent. — When a person consents generally to an operation for specific relief and, in pursuance thereof, takes a general anesthetic without giving any special in- structions to the operator, he impliedly gives the latter authority to do any act reasonably neces- sary to accomplish the general purpose of his spe- cific employment, or clearly incident thereto, and, in his discretion, to depart from the specific op- eration originally contemplated, so far as to give the patient the fullest measure of benefit, from his skill, judgment and observation, within the purview of the relief sought. Thus, in the Mohr case, if the general employment had been to re- lieve the patient of defective hearing, and had such relief been the specific purpose of the opera- tion agreed upon, the mere fact that the surgeon made a wrong operative diagnosis resulting in recommending an operation on the wrong ear (as- 80 DENTAL JUKISPKUDENCE suming that the relative condition of the ears had not changed between the first examination and the time of the operation) should not have limited his authority to an operation on the ear mentioned, because the patient was entitled to have the bene- fit of his skill and best judgment at all times. Neither party should be bound by the mistake. On the other hand, if the relative conditions of the ears changed between the examination and the op- eration, the surgeon should have had the implied authority to deal with conditions as he found them at the time, keeping in view the general purpose of his employment, — to relieve defective hearing. Bennan v. Parsonett, N. J. L., (83 Atl., 948), was an action for assault and battery brought against a surgeon by a patient. The plaintiff arranged with the defendant for an op- eration for a rupture on the left side. Such operation was advisable but not imperative. After the anesthetic had been administered, the surgeon discovered on the right side a hernia which was a serious menace to the patient, and of a character to cause his death should strangu- lation occur, and operated for the latter trouble without procuring the patient's consent. The trial court correctly stated the law, to the effect that the patient must be the final arbiter to de- cide whether or not he will take the chances of an operation, and that his consent, express or im- plied, must be given before a surgeon can law- CONSENT TO OPEEATION 81 fully operate ; but the court held that the consent to operate for one hernia, under the circum- stances, was not, as a matter of law, an implied consent to operate for the other and left the ques- tion of consent to the jury, as one of fact. The jury found that the patient did not consent and rendered a verdict of one thousand dollars against the surgeon. On appeal the upper court osten- sibly rejected this rule as being unsuited to modern operations, held that under the circumstances consent was reasonably implied, and laid down the rule, in substance, that when a person has selected a surgeon to operate upon him, and has appointed no other person to represent him dur- ing the period of unconsciousness which consti- tutes a part of such operation, the law casts upon the operator the responsibility of so acting, in good faith, in the interest of his patient, within the reasonable scope of his employment and the general purpose of the relief sought, that the latter shall receive the fullest benefit of that pro- fessional judgment and skill to which he is legally entitled. The suggested fiction that the surgeon becomes the agent of the patient under an anes- thetic only complicates matters, since the same questions arise in determining his authority as agent, and must be answered on the same state of facts. This case, while ostensibly announcing a different rule to the one given in the Mohr case, in reality merely justifies the extension of the 82 DENTAL JUKISPKTTDENCE field within which the court will consider that, as a matter of law, the patient by implication, con- sented to the operation as performed, but leaves the rule the same, namely, that, where the opera- tion performed was not the operation agreed upon, the question as to whether there was such a substantial departure from the scope and pur- pose of his employment as to negative the idea of consent, is a question of fact for the jury, to be determined from a consideration of all the cir- cumstances in the case, including the general pur- pose of the employment, the character of the op- eration specified and of the one actually per- formed, their relation to the relief sought, the exigency of the situation, the general welfare of the patient, the good faith and fair dealing of the operator. The Patient's Right as Affecting Operator's Duty. — The converse of the proposition may throw some light on the subject. The patient has certain rights in the premises. In fact his rights are the controlling factor in the situation. His welfare is the origin of the relation and gives character to the entire transaction. Would he have reasonable grounds for complaint, under the circumstances, if the operator had not acted in the manner he did and performed the operation in question? An affirmative answer to this question means that consent was implied. What did the patient have a right, under the law and the facts, CONSENT TO OPERATION 83 to expect? If the answer is, the relief given, the consent was necessarily implied. A surgeon operates for a fibroid tumor and removes the same. During the operation he discovers a badly infected appendix, not detected by the operative diagnosis, ready to break and send its virus throughout the abdominal cavity at any moment, perhaps before the patient leaves the operating table. What are the patient's rights'? What is the operator's duty? The implied consent of the patient must be broader than the operator's duty, for there must be a field within which the latter may use his discretion. There can be no duty on the part of the one without an implication of consent in reference thereto on the part of the other. Terms of Contract for Operation. — The results of the cases not growing out of accidents and similar emergencies, may be summarized as fol- lows: 1. Consent of the patient is necessary to the right to perform any operation. 2. Consent may be express or implied. 3. Express consent may be general or specific. 4. Where the consent is general, with reference to some general relief desired, the operator is at liberty to do any act reasonably calculated to effectuate that general object and he is given a wide latitude of discretion. 5. Where the consent is general, with reference 84 DENTAL JURISPRUDENCE to some specific relief, the operator may do any- thing reasonably calculated to afford the specific relief contemplated, but the authority does not extend beyond the purview of said relief. 6. Where the patient consents to a specific op- eration for the purpose of some general relief, the operator has implied authority to do anything reasonably incident or collateral to the specific operation, or reasonably necessary to the fullest measure of the general relief involved. 7. Where the patient consents to a specified op- eration for the purpose of some specified relief, the operator is limited to the specified operation, and such collateral matters as may be reasonably necessary to bring about the specific relief con- templated. 8. General consent to a specific operation im- pies consent to the performance of the same ac- cording to the professional discretion of the oper- ator. 9. General consent to a specific operation im- plies consent to perform all incidental operations related to and reasonably growing out of the primary operation. 10. General consent to operate for specific relief implies consent to the use of all the means reason- ably calculated to accomplish that purpose, under the doctrine that where an end is required the necessary means are implied. 11. Where the operator acts without any au- CONSENT TO OPERATION 85 thority whatever, he is a trespasser, liable for punitive damages, regardless of his motives and of the benefits to the patient. 12. Most operations cannot be performed as you erect a house or construct a machine, accord- ing to plans and specifications, but the patient must necessarily confide in the operator to do what, in his judgment, the health and welfare of the patient may require, in view, not only of previously known conditions but also of situations, anticipated and unexpected, as they arise during the progress of the operation. 13. Where the patient forbids specific things, his wishes must be respected, and a breach in this respect makes the operator a trespasser ab initio and liable for punitive damages. 14. To the knowledge of the patient, it fre- quently occurs that complete diagnosis is not made until after the patient is under the influence of the anesthetic, in which event the patient must be presumed to consent to any operation not ex- pressly prohibited, but within the general pur- view of the employment, which the operator fi- nally concludes, in good faith, unbiased by selfish motives, the patient's condition demands. 15. Where the operator has the permission of his patient, he will not be liable, except for mal- practice, whether his efforts are beneficial or in- jurious to his patient. 16. The circumstances under which the ques- 86 DENTAL, JURISPRUDENCE tion as to whether an operator exceeded his au- thority are so diversified and individually dis- tinctive, that the courts will not attempt to lay down any hard and fast rule to fix the line at which the patient's consent ends and the opera- tor's trespass begins. 17. Where the law imposes a duty on the opera- tor to give the relief in question, the consent of the patient is implied, and even in cases where the situation is not so serious as to raise a legal duty, the determination of the operator to act, if in good faith and apparently for the welfare of the patient, ought to be final and bind the patient un- less clearly and manifestly wrong or expressly forbidden. Damages for Unauthorized Operation.— In de- termining the amount of damages for an opera- tion beyond the purpose and scope authorized, the jury should take into consideration the character of the injury inflicted, the good faith of the opera- tor, the reasonableness of what he did, in view of the general purpose of his employment, the na- ture and exigency of the malady which was the subject of the engagement and of the disorder actually treated, and the beneficial nature of the operation performed. 5 Even though the services were actually beneficial to the patient, still where there was no consent, he should recover nominal 5 Mohr v. Williams, 95 Minn., 261. CONSENT TO OPERATION 87 damages for the technical trespass, and the op- erator cannot recover a fee for his services in that behalf. CHAPTER VIII COMPENSATION History. — At common law, professional men could not sue and recover for services rendered, nor even contract beforehand for pay for such services. This grew out of a supposed analogy with the legal profession. The patient might pay the practitioner if he chose to do so, and it was always lawful for the latter to accept such re- muneration, but the question of pay was entirely within the discretion of the patient. The law on this subject has undergone a complete revolution and, at the present time, professional services stand upon the same footing, as to compensation, as all other services. Agreement as to Fee. — Where the charge is agreed upon, such agreement, if reasonable, will control, in the absence of fraud or undue influ- ence. 1 No Agreement as to Fee. — One who, without previous agreement, knowingly accepts services from another is bound in law to render compensa- tion to the extent of the reasonable value thereof. The law presumes that he agreed to do so, and that such understanding was in the minds of both X Doyle v. Edwards, 15 S. D., 648 ; Burgoon v. Johnson, 194 Pa. St., 61. 88 COMPENSATION 89 parties at the time the work was done. It is based upon the broad principle that the law will re- quire a party to do what he apparently promised to do, or what he ought to do, regardless of his real undisclosed intention in the premises. In the absence of previous agreement, a dentist is en- titled in law to a reasonable compensation for his services and the medicine and materials furnished by him. The basis of the obligation to pay may be either (a) the benefit to the patient, or (b) the detriment to the practitioner, or (c) the two com- bined. Benefit to Patient. — Both in fact and in law the origin and foundation of the relation of patient and practitioner is a supposed benefit to be derived by the patient. Eliminate this idea from the minds of the people and the profession will cease. It is absurd, therefore, to suppose that the result of the treatment should in all cases be entirely ig- nored in questions of the reasonable value of the services. But, on the other hand, in the case of the physician, especially, it cannot always be de- termined beforehand whether he can be of any benefit to his patient; in fact, he may respond promptly to a call and, on his arrival, may find his patient dead. Having attempted to discharge his duty to his patient and, being prevented by no fault of his own, he is entitled to be reimbursed for his efforts made in good faith. It is a general law of service that so long as the servant does 90 DENTAL JURISPRUDENCE his duty faithfully, promptly and properly, he is not concerned in the real value, to his master, of his efforts. The determination of that question is exclusively with the latter and, so long as he continues to accept the services, he must pay for them, regardless of their real value to him. Fault of Servant, — Benefit to Employer. — How- ever, if the value is affected by the fault of the servant in the performance of his duty, a different question arises. He did not do what he was em- ployed to do, but in reality departed therefrom, and is held responsible for results, and is, there- fore, entitled to compensation only as he bene- fited his employer. Suppose, in the last illustration, that the physician delayed unneces- sarily, and without reasonable cause or excuse, to respond to the call, a different and probably controlling element would be injected into the problem. By delay he breached the contract. He departed from the implied agreement. He was not employed for that purpose. If he did his patient no good, and if such result may have been due to his own fault, then he should not be entitled to any compensation. Proper Treatment. — A practitioner is employed to treat his patient properly, and a departure therefrom is a change of the employment. Where the fault of the practitioner is an element in the final result he can recover only the value to the patient of his services. If, by such test, they had COMPENSATION" 91 no value, he can recover nothing, and, if the pa- tient was damaged thereby, the obligation may rest on the practitioner to respond therefor. Value of Services, a Question of Fact. — Where he has no previous understanding with the pa- tient, the amount to which the practitioner is en- titled, is a question of fact for the jury, and is said to be what the services were reasonably worth, under the circumstances. In determining the value of the services the jury should take into con- sideration the time consumed, the delicacy and difficulty of the operation, the usual and customary fees for the same or similar services in the lo- cality, and, sometimes, the success or failure of the efforts. 2 Agreement is Not Necessary. — It is not essen- tial to a right of recovery that the value of the services be agreed upon beforehand and, in the absence of special agreement to that effect, suc- cess in treatment is not essential to a right of recovery, but, where the practitioner is guilty of a breach of duty, may be taken into consideration in determining the amount to which the practi- tioner is entitled, since the basis of the claim then becomes the benefit derived by the patient from the services, when the same is susceptible of dem- onstration. 3 2 Adams v. Stevens, 26 Wend., 451; Smith v. Watson, 14 Vt., 332; Wheaton v. Johnson, 55 111. App., 53. 3 Ely v. Wilbur, 49 N. J. L., 685 ; Gallaher v. Thompson, 1 Wright (Ohio) 466; Kanna v. McMullen, 1 Peake, 83; Hupe v. Phelps, 2 Stark, 424, 92 dental; jurisprudence Fee Where No Relief. — Since a dentist is not an insurer of the success of his treatment he is en- titled to the reasonable value of his services, whether he succeeds in curing his patient or not, provided he uses the skill and care of an ordinary skillful and careful dentist, and exercises his best judgment. 4 Thus, he may devote time and ma- terial in an effort to save an ulcerated tooth, and fail in the end. If he acted in good faith and the failure was not due to his own fault, he may re- cover the reasonable value of his services, meas- ured by the detriment to himself. What May Be Shown. — In General. — The prac- titioner may show the number of his visits or treatments, the time consumed, the distance traveled, the medicines and materials furnished. The implied agreement is to pay what the services are reasonably worth, in the market, as it were, and all matters bearing upon that fact are admis- sible in evidence by either party. 5 Previous Charges. — Charges for similar serv- ices previously rendered to the same patient are admissible as presumably being in the minds of the parties at the time the services in question were rendered, and especially when offered on be- half of the patient. 6 Frequency of Treatments. — The practitioner must determine the frequency of treatments re- iYunker v. Marshall, 65 111. App., 667. 5 Starrett v. Miley, 79 111. App., 658. e Sidener v. Fetter, 19 Ind. App., 310. COMPENSATION" 93 quired by the condition of his patient, and if the patient accepts such services he cannot escape liability for services actually rendered, on the ground that treatments were repeated more fre- quently than necessary, unless he can show fraud or other improper motive on the part of the prac- titioner. 7 Where the services- are admitted, but the alleged special contract, as to fee denied by the patient, the practitioner can recover at least what his services were reasonably worth. Thus, if the practitioner claims a specified amount on the basis of a specific contract with his patient, before the services are rendered, and the patient denies the special contract but admits that the services were rendered, the evidence on the ques- tion of contract, being equally balanced or prepon- derating in favor of the patient, the practitioner is, nevertheless, entitled to recover the reasonable value of his services. 8 Pkofessional Standing. — A practitioner may show his high professional standing as affecting reasonable value of the services he performed. 9 Nature of Remedies Must be Disclosed if Sought. — In an action for his fee the practitioner may be required to disclose the nature of rem- edies used by him, even though he claims a secret formula, and the patient may show that such rem- 7Ebner v. Mackay, 186 111., 297; Todd v. Myers, 40 Cal., 355. 8 Henderson v. Hall, 87 Ark., 1. 9 Lange v. Kearney, 51 Hun., 640; 127 N. Y., 676; Heintz v. Cooper, (Cal.) 47 Pac, 360. (Not reported in State Reports.) 94 DENTAL JURISPEUDENCE edies have no efficacy towards the result sought to be attained, or that they are, in fact, injurious when so used. 10 In reduction or defeat of a fee the patient may show that the practitioner commu- nicated to him, or his family, the smallpox while on the professional visits for which he is seeking to recover. 11 Bill Differing from Present Claim.— The fact that a practitioner in an action to recover the value of professional services, presented a bill for an amount less than he is suing for, is com- petent evidence on the question of the value of his services, as it is in the nature of an admission that the amount thereof is the fair and reasonable value of the same. Some courts hold that his right of recovery is limited to that sum, but others hold that, while his own estimate of the value of his services is evidence against him of a high character, it is by no means conclusive, and that he still has the right to show that his services were in fact worth more, and that the bill was rendered for a less amount by mistake, or for some other satisfactory reason. 12 How Proven. — The method of treatment, what was done and when, how and by whom, and all facts within ordinary observation, may be estab- lished by the testimony of ordinary witnesses, 389 10 Jones v. King, 81 Ala., 285. n Piper v. Manifee, 12 B. Mon. (Ky.), 465. 12 Heath v. Kyles, 1 N. Y. Supp., 770; Williams v. Glenney, 16 N. Y., COMPENSATION 95 but the propriety and skill of the treatment or operation can be proven only by experts on the subject. 13 The usual and customary fee for like services, and the reasonableness of the charges made, must be shown by the testimony of other practitioners. 14 In such cases, the testimony of the witness is ordinary in so far as it goes to the usual and customary fee, 15 and opinion evidence, in so far as it assumes to state what is a reason- able fee, or what is the reasonable value of the services. 16 Effect of Opinions. — These opinions as to reasonableness of fees and value of services, while not binding on the court and jury, must not be disregarded and a value fixed by them upon their judgment. 17 What May Not Be Shown. — The reasonableness of a charge is not shown by testimony of what the practitioner charged another patient in a sim- ilar case. 18 The professional income of the prac- titioner can have no bearing on the value of his services, regardless of the issues. 19 The patient will not be permitted to show for what he could 13 Spaulding v. Bliss, 83 Mich., 311. 14 Chicago v. Wood, 24 111. App., 40; Wood v. Ohio R. Co., 53 S. C, 10; MacEvitt v. Maass, 72 N. Y. Supp., 158. 15 Walker v. Cook, 33 111. App., 561-3. 16 Marion Co. v. Chambers, 75 Ind., 409 ; MacEvitt v. Maass, 72 N. Y. Supp., 158. 17 In re Smith, 41 N. Y. Supp., 1093; Ladd v. Witte, 116 Wis., 35; Wood v. Baker, 49 Mich., 295; Spalding v. Bliss, 83 Mich., 311. 18 Collins v. Fowler, 4 Atl., 647. 19 Marion County v. Chambers, 75 Ind., 409 ; Thomas v. Caulkett, 57 Mich., 392. 96 DENTAL. JURISPRUDENCE have procured other practitioners to render the services in question. 20 Neither can he show, in defense, the practitioner's bad character or bad reputation generally. 21 Professional Character of Practitioners. — In such an action the professional character of the practitioner is not involved, and evidence on that subject is immaterial and cannot be introduced. 22 Pecuniary Circumstances of Patient. — The pe- cuniary circumstances of the patient or practi- tioner are not an element in determining the value of the services, as the value, whether considered as a benefit to the one, or a detriment to the other, cannot be affected by the ability of the obligor to pay or the necessities of the obligee. 23 Special Agreement as to Result.— Where a pro- fessional man makes a special agreement to af- ford relief to his patient, or to accomplish any other specific result, he cannot recover either for services rendered or material supplied, unless he reasonably accomplishes what he promises. 24 In this connection, it may be said that an agreement to do work to the satisfaction of another, means to do such work that the party ought to be satis- fied therewith. He cannot object to it from sheer 20 Marion Co. v. Chambers, 75 Ind., 409. 21 Jeffries v. Harris, 10 N. C, 105. 22 Jeffries v. Harris, 3 Hawks, 105. 23 Wheaton v. Johnson, 55 111. App., 53 ; Hess v. Lowrey, 122 Ind., 225 ; Robinson v. Campbell, 47 la., 625; Marrisett v. Wood, 123 Ala., 384. Apparently contra, Succession of Haly, 50 La. Ann., 840. 24 Smith v. Hyde, 19 Vt., 54. COMPENSATION 97 caprice or merely to avoid his obligation. 23 If there is an express contract, conditional on suc- cessful treatment, the practitioner must show that the condition has been reasonably performed, as an essential element of his right to recover. 26 Liability of Third Person. — A mere request by a third person of a practitioner to render serv- ices for another, does not raise an implied prom- ise, on the part of the person making the request, to pay for the services. 27 License Presumed. — In an action for fee, in the absence of any evidence, it will be presumed that the practitioner had a license. 2S Unlicensed Practitioners. — An unlicensed prac- titioner cannot recover for his services in a state where the statutes in force at the time the services were rendered require a license, and especially if the statutes bar recovery, or fix a penalty for practicing without license. 29 Necessaries. — Under the law a minor is liable for necessaries furnished him to the extent of their reasonable value at the time. A special contract with the minor relative to the consideration is disregarded. A husband is liable for necessaries 25 Keeler v. Clifford, 165 111., 544, 548. 26 Hupe v. Phelps, 2 Stark, 480 ; Smith v. Hyde, 19 Vt., 54 ; Mock v. Kelley, 3 Ala., 387. 27 Starrett v. Milery, 79 111. App., 658. 28 Good v. Lascher, 99 III. App., 653 ; Williams v. People, 20 111. App., 92. 29 Patrick v. Perryman, 52 111. App., 514; Chicago v. Honey, 10 111. App., 535; Warren v, Saxby, 12 Vt., 146; Oscanyan v. Winchester Co., 103 U. S., 261; Harrison v. Jones, 80 Ala., 412; Orr v. Meek, 111 Ind., 40. 98 DENTAL JURISPRUDENCE furnished his wife. This liability attaches even though they are supplied her over his objection, when he fails or refuses to provide the same. The estate of an insane person is liable to the party who supplies him with necessaries. What Are Necessaries. — The question of what are necessaries, has often been adjudicated by the courts. Like most cases coming before the courts, the answer is not always self-evident. A neces- sity to one might be a luxury to another, while a luxury today may be a necessity tomorrow. With reference to husband and wife necessaries em- brace the usual provisions for maintenance of the wife's health and comfort appropriate to their mode of life, in view of their social standing and station, and his financial ability. 30 Dental Services. — It is a matter of common knowledge that artificial teeth are most useful and necessary articles for the promotion of personal comfort and health, and that their use in this country has attained practical universality ; there- fore, a husband is primarily liable for artificial teeth furnished his wife on her order. 31 Artifi- cial teeth must be considered necessaries for which the husband is liable, when they have been fur- nished the wife, and she has retained them with his knowledge, and where he has given the dentist who supplied them reason to believe from pre- 30 McMahon v. Lankley, 133 111., 636; Clark v. Tenneson, 146 Wis., 65. 31 Clark v. Tenneson, 146 Wis., 65, 67. COMPENSATION 99 vious conversation with him that she was author- ized to contract for them. 32 The filling by a dentist of the decayed teeth of a minor who was fifteen years old and the owner of considerable estate, where the work was reasonably necessary for the preservation of the teeth, was considered a necessity for which his estate was liable. 33 Selection op Dentist. — Ordinarily the hus- band has the right to select the dentist who per- forms work for the wife, and it is the wife's duty to go where the husband determines. Therefore, if a husband specifically objects to a dentist and provides for his wife a reasonably competent per- son to do the work for her, the dentist objected to cannot, with knowledge thereof, render the services and hold the husband liable therefor. In such case he could look only to the wife, and should make a contract or special agreement with her to that effect. The same rule applies to guardian and minor, and similar relations. Persons Under Disability. — As a general prop- osition, the estate of any person under legal dis- ability, for any cause, will be liable for dental work and services reasonably necessary for the^ health, comfort, convenience or appearance of the patient, and the measure of the liability is the fair, reasonable value of the services and materials. Family Expenses. — Dental services for husband 32 Gilman v. Andrus, 28 Vt., 241. 33 Strong v. Foote, 43 Conn., 203, 205. 100 DENTAL JURISPRUDENCE or wife or any minor member of the family are reasonably within the intent of those statutes which make both husband and wife liable for fam- ily expenses. Parent and Child.— Liability of Parent.— At common law the liability of a father for the sup- port, maintenance and education of his minor child, while recognized, was not well denned and amounted to little more than an imperfect unen- forcible obligation. The duty was always con- ceded, but the manner of its discharge was ex- clusively within the discretion of the parent. The party who voluntarily supplied the wants of a minor had no legal claims against the parent, and all that he did in this respect was at his own risk, unless he had the express promise of the father to remunerate him, or the circumstances were such that a promise of that character would reasonably be implied. In the absence of special legislation, this obligation remains the same as at common law, and the general rule prevails that where a person furnishes necessaries to a minor without authority from the parent, he does so at his peril and, in order to recover from the parent, he must show by a preponderance of the evidence, either an express authority or circumstances from which such authority may be implied. The par- ent is to be the judge of the wants of his child and of his ability to supply them, and the extent to which he shall respond to this obligation, and, COMPENSATION 101 when no express authority has been given to the child to bind the parent, it devolves upon the party supplying such necessities to show the neg- lect or refusal of the parent to provide the same. Minor, Special Agent of Father. — Where the child has authority to bind the parent it is usually in the nature of a special agency, and the party dealing with the minor is bound to know the ex- tent of that authority. Where a parent sent his daughter of sixteen to a particular dentist to have work done at his expense, and the child, of her own volition, went to another dentist and had the work done, the child was regarded as a special agent of the parent and the dentist who did the work could not recover, irrespective of the value of the services or the character of the work. 34 It behooves the dentist to know that the minor has express authority to bind the parent with refer- ence to the particular services. Liability of Mother. — In states where married women have complete control of their separate estate, a mother may bind herself to pay for den- tal services rendered to her minor children, not- withstanding the father is living and able to pay. Malpractice. — The evidence that will sustain an action against a practitioner for malpractice will be sufficient to defeat his recovery in an action for compensation in such case. In fact less neg- ligence is necessary to defeat a right to compensa- 34 Dumser v. Underwood, 68 111. App., 121. 102 DENTAL JUKISPKUDENCE tion than is requisite to sustain an action for injury for the malpractice. 35 If the services of the practitioner were of no value and if the rem- edies used in the treatment of the patient were worthless and possessed no efficacy in producing a cure, and these facts were known to the practi- tioner, or ought to have been known to him at the time of the treatment, no recovery can be had for the services. 36 35 Nixon v. Phelps, 29 Vt. 198; Loan, etc. v. Friedley, 123 Ind., 143; Hill v. Featherstoneaugh, 8 Bing. (Eng.), 572. 36 Logan v. Field, 75 Mo. App., 594, 603. CHAPTER IX LICENSE I. Right to Require or Issue Common Law Rights. — At common law any one might practice medicine or dentistry or perform surgical or dental operations. No preliminary preparation and no license to practice were re- quired as a matter of law. This condition was also true on the continent of Europe within the jurisdiction of the civil law. Of course the prac- titioner was responsible to his patient for the ex- ercise of an ordinary and reasonable degree of skill and knowledge, as measured by the standard of proficiency and professional learning at the time; but the State did not then attempt to pro- hibit incompetent persons from practicing nor to regulate the standard of proficiency by establish- ing a minimum standard of qualification. To adopt and follow such lawful pursuit not injurious to the community, as he may see fit, is a funda- mental right and privilege of every American citi- zen. 1 Public Welfare. — "It is undoubtedly the right of every citizen of the United States to follow any l Frorer v. People, 141 111., 171. 103 104 DENTALi jurisprudence lawful calling he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex and condition. This right may, in many respects, be considered as a distinguishing feature of our Republican institutions. Here, all vocations are open to every one on like condition. The right to continue the practice of a profession is often of great value and cannot be arbitrarily taken away any more than real or personal prop- erty can, but there is no arbitrary deprivation of such right, where its exercise is not permitted be- cause of a failure to comply with conditions im- posed by the state for the protection of society. The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as may be and are necessary to secure the people against the consequences of ignorance and incapacity as well as deception and fraud." 2 Right of State. — The right of the states to regu- late the practice of dentistry by fixing a reason- able and uniform standard of requirement is universally recognized by the courts and has passed out of the realm of discussion. The legis- lature may fix, by statute, reasonable standards for determining the competency and fitness of ap- plicants for license to practice dentistry and den- tal surgery, 3 or it may provide for a Board of 2 Dent v. W. Va.. 129 U. S., 114, 121. 3 Rx. parte Whitely, 144 CaL, 167,; 1 A- €*, 13. LICENSE 105 Examiners and invest it with power to establish the same. 4 Requirements. — The public welfare requires not only competence in the practitioner but also mo- rality, general uprightness, respectable appearance and reasonable obedience to law. A grossly im- moral or criminal practitioner is more dangerous to society than one who is merely incompetent and, therefore, good moral character and a record free from crime are universally required of ap- plicants, and the courts have universally held such provisions constitutional. The same body which is empowered to determine the competency of per- sons may also pass upon the other qualifications required, and reject those who do not fulfill rea- sonable demands in this behalf. While such laws are an invasion of the common law right of the individual, they are justified on the ground of pub- lic necessity. Ordinarily the law cannot inter- fere with freedom of private contract. Why should the citizen not be permitted to engage whomsoever he pleases to administer to him when he is sick or relieve him of dental troubles when they assail him? The answer is, The public must protect itself against impostors, fakers, charla- tans, ignoramuses and quacks. Unreasonable Limitations. — Public welfare and interest are safeguarded when proper qualifica- 4 In re Thompson, 36 "Wash., 377; 2 A. C, 149; State v. Eosenkrans, ) E. I., 374; 19 A. C, 824. 106 DENTAL JURISPRUDENCE tions and fitness are assured. When that object is accomplished interference should cease. Restrictions. — A restriction should have some reasonable relation to the purposes to be attained. The requirement that an applicant for examination for license to practice must be a graduate of a college or school or some particular class of school is not only unreasonable and unjust, but also not reasonably promotive of the object to be attained — the selection of fit and competent persons. » How or when or where, or within what period of time the qualifications were attained, are matters in which the public is not concerned. 5 The only test should be, Is the party competent, worthy and fit to practice the profession? What he has, not where he got it, should be the subject of inquiry. What he can do, not where he acquired the ability nor how long it required him to attain proficiency, is the element of public interest and inquiry. A requirement that a party must be a graduate of a particular college or particular class of college, is unfair discrimination which the public should not tolerate. It excludes the competent citizens who acquired their information in other schools or by private tuition and instruction. It does not answer the objection to say that the requirement excludes only the incompetent, that is, only those who cannot stand the required test as to pro- ficiency. The existence of the rule presupposes 5 Almond v. Nugent, 34 la., 300. LICENSE 107 the contrary. If such rule excludes only the in- competent then why not eliminate them by the usual examination, — the same process by which other incompetents are excluded. If present standards and methods of examination do not eliminate all incompetents then better change the standard or the method of examination. The trouble is, the limitation in question is intended to get rid of, not the unqualified, but a class, re- gardless of qualification and fitness and, as such, is an unjustifiable exercise of the police power. The restrictive and classifying provisions of such statutes are uniformly considered void unless they are in fact in good faith reasonably within the necessities of the public protection and promotive of the public welfare. 6 Power of the State.— The courts uniformly hold that the State may regulate the practice of den- tistry and, for that purpose, may establish a Board of Examiners with power to fix reasonable regulations for examination and standards of pro- ficiency and fitness required on the part of appli- cants for license. 7 Dentistry is regarded as an occupation which reasonably falls within the legis- lative right of regulation, under the police power. The statutes usually excuse from examination dentists who are practicing in the state at the time 6 Railway Company v. Jacksonville, 67 111., 37; Lake View v. Cemetery Co., 70 111., 192; Babcock v. Buffalo, 56 N. Y., 268; Evarts v. Council Bluffs, 46 la., 46. 7 1 A. C, 13. 108 DENTAL JURISPRUDENCE the law takes effect. Such exemption is legal and does not render the act void. 8 A statute which requires that an applicant for a license to prac- tice dentistry shall have a diploma from some dental college in good standing, and shall pass an examination by a Board of Examiners, has been held not unreasonable, even when there is no dental college in the state. 9 A statute which per- mits the Board of Examiners to determine whether an applicant for a certificate has gradu- ated from a reputable dental college has been held not a delegation of judicial power to an inferior board, and the requirement not unreasonable but enforcible. 10 As before stated, these statutes and decisions are not justified by the reason which gives the law validity, namely, the public welfare. The limitation to graduates of particular schools, is either shortsightedness or bad faith, and in either event should not be upheld. It is an un- warranted interference with individual rights. Boards of Examiners. — Statutes usually pro- vide for a dental board, and leave the matter of fixing a standard of qualification to such board, and it has been held that such provision is not a delegation of either legislative or judicial power to an inferior body. It has been universally held that reasonable license-statutes are a lawful ex- 8 27a; parte Whitely, 144 Cal., 167; 1 A. C, 13; State v. Rosenkrans, 30 R. I., 374; 19 A. 0., 824; Driscoll v. Commonwealth, 93 Ky., 393. 9 State v. Littooy, 52 Wash., 87; 17 A. C, 292. 10 Ex parte Whitely, 144 Cal., 167; 1 A. C, 13. LICENSE 109 ereise of the police power; are not an unlawful abridgment of the rights and privileges of citi- zens ; are not an infringement on the right of con- tract; do not deny a citizen the equal protection of the law; are not an unwarranted interference with vested rights and are not an unlawful delega- tion of legislative or judicial power. 11 However, there must be no unreasonable classification with extra burdens on some, not on others. 12 Statutes Construed Liberally. — Though, in a measure, in derogation of the common law, the statutes and regulations should be liberally con- strued to promote and accomplish the object of their creation. 13 Ordinarily a person licensed to practice medicine cannot practice dentistry, with- out obtaining a license to engage in such practice, in a state requiring dentists to procure a license before engaging in the profession. 14 In a prose- cution for practicing without a license, it is im- material that the defendant is entitled to a license, or that the Board unlawfully withholds the same from him. 15 It is no defense to such prosecution that the complaining witness who was in the em- ploy of the Board of Dental Examiners went to the office of the dentist, had him fill a cavity in his tooth and paid him for the services with the view 11 1 A. C, 13. 12 State v. Gravett, 65 Ohio St., 289. 13 Smith v. People (Col.) 36 L. R. A., 158; State v. Yegge, 19 S. D., 234; 9 A. C, 202. 14 State v. Taylor, 106 Minn., 218; 16 A. C, 487. 15 State v. Mosher, 78 la., 321. 110 DENTAL JURISPRUDENCE of prosecuting him therefor, and the court was justified in refusing an instruction to the jury that such a fact was a defense. 16 II. Power to Revoke Reserved Right. — The power to grant a license to the competent and fit and refuse a license for incompetency or unworthiness carries with it the power to revoke, for cause, a license which has al- ready been issued. The causes which will justify refusing a license will ordinarily justify revoking the same. The issuing of a license for supposed merit must necessarily imply the reservation of the right to revoke the same if it shall subse- quently appear that it was obtained by fraud or through mistake by one not entitled thereto, or in event the licensee shall subsequently prove in- competent or unworthy. From the very nature of things, a license can be held only during good behavior. The purpose of the law, the protection of society, demands this interpretation. Not Vested Right. — A license is not a vested right, nor an irrevocable franchise, but is at all times subject to the police power and the policy of the State in the protection of its citizens. A person cannot acquire an absolute vested right under a license for any definite period beyond the control of the police power of the State. A license to practice a profession confers no vested 16 State v. Littooy, 52 Wash., 87; State v. Smith, 152 N. C, 798; L. R. A., 946, 954; 25 L. R. A., 341 et seq. and 349 et seq. LICENSE 111 right or privilege above legislative control. Eight to practice any profession is not property, within the strict meaning of the term, and does not amount to a contract with the State, within the meaning of these constitutional terms. Gen- erally speaking, the legislative power of the State may prescribe the conditions on which any avocation or calling, affecting the public, shall be pursued. A licensee takes the license subject to all the conditions and restrictions imposed by the law under which the same was issued or granted, including the reservation of the right to revoke, for cause, on proper notice and reasonable oppor- tunity to be heard. 17 Manner of Revocation — Notice — Hearing. — Be- fore a license can be revoked by a board of exam- iners, the licentiate must be given due notice and a reasonable opportunity to be heard. Nothing is presumed in favor of the jurisdiction of such a body, and the particular facts necessary to con- fer jurisdiction must be made to appear from the record of its proceedings. If the records do not show such jurisdictional facts, the judgment will be void. 18 Not a Judicial Function. — The revocation of a license to practice a profession is not necessarily the exercise of a judicial function, where all the formalities of courts of justice must be observed, 17 Launder v. Chicago, 111 111., 291; People v. McCoy, 125 111., 289. 18 Swearengen v. Gulick, 67 111., 208; Foster v. Glazenor, 27 Ala., 391: Harney v. Tyler, 2 Wall., 342; Freeman on Judgments, Sec, 123. 112 DENTAL JURISPRUDENCE and the action of a board invested with such power in revoking a license, for justifiable cause, is not the deprivation of the practitioner of property without due process of law, in violation of sec- tion 8 of article 2 of the Federal Constitution. 1 'Due process of law, or the law of the land (which means the same thing) does not necessarily refer to judicial proceedings. Private rights and enjoyment of property may be interfered with by the legislative or executive, as well as the judicial, department of the government. When it is de- clared that a person shall not be deprived of his property without due process of law, it means such an exercise of the powers of government as the settled maxims of law permit and sanction, under such safeguards as these maxims prescribe for the class of cases to which the one in question belongs. ... It has never been held that the granting or refusing to grant a license to practice a profession was the exercise of judicial power, . . . and there is no possible distinction in this re- spect between refusing to grant a license and re- voking one already granted. Both acts are an exercise of the police power, — the application of administrative discretion. The power exercised and the objects of its exercise are in each case identical, namely, to exclude an incompetent or unworthy person from such employment. There- fore, the same body which may be vested with the power to grant or refuse to grant a license, may LICENSE 113 also be vested with the power to revoke. . . . The constitutionality of such laws, as a valid exercise of the police power, has often been sustained and, indeed, rarely questioned. Disbarment of an at- torney by a court from his office as attorney of the court, like the order of his admission, is the ex- ercise of judicial power and is a judgment of the court ; but the usual cases of license to practice a profession are not analogous to the case of an at- torney. The cases relating to the disbarment of attorneys are based expressly upon the ground that attorneys are officers of the court, whose duties relate almost exclusively to proceedings of a judicial nature, and that, at common law, it rested exclusively with the court to determino who is qualified to become one of its officers, and also for what cause he ought to be removed. Therefore, it is held that attorneys can only be disbarred from office for misconduct ascertained and declared by judgment of the court. ' ' 19 Charges. — While it is highly desirable that spe- cific charges be preferred, setting forth the nature of the offense, still the Board may act upon an in- formal complaint, provided the licentiate be given a reasonable opportunity to meet all the evidence adduced against him. The charges need not be stated with the accuracy of an information or an indictment in criminal law; they are sufficient if they challenge the attention of the Board and no- 19 Chapman v. State, 34 Minn., 387. 114 DENTAL. JURISPRUDENCE tify the licensee of the nature of the accusations made against him. 20 Proceedings. — Investing an examining Board with power to issue and revoke license for cause, is not, generally speaking, clothing it with judicial power, but rather investing it with administra- tive discretion. When hearing complaints, such Board is not a judicial body, and it is not required to adhere strictly to rules of procedure in court in the conduct of the hearing or in the introduc- tion of evidence. Its findings and decisions, made in good faith and, after due notice and reasonable opportunity to be heard, are binding on the courts unless clearly wrong. Grounds or Causes. — Immorality. — The element of good moral character is a prerequisite to the practice of any profession. Such requirement has become a settled policy of all the states and has been held to be indispensable to the exercise of the right under a license. 21 In other words, a license may be revoked for immorality; and this applies, even though the only evidence offered, or specifications given, are of acts prior to the time the license was issued, or even prior to the pas- sage of the law under which the license was granted. The law which permits such revocation is not ex post facto. Character, How Proven. — The real ground of 20 Meffert v. Packer, 66 Kan., 710. 21 1 L. R. A., 814. LICENSE 115 revocation is want of good moral character at the time of complaint or hearing. Of necessity, this want can be proven only by past conduct, suffi- ciently recent to leave an inference of present de- linquency. Character is built by a course of conduct. Acts are the cause; character, the re- sult. In such case, the party is not being tried for past offenses, but for the present deficiency which the prior conduct tends to prove. If, in the meantime, a reformation has taken place, it should be susceptible of proof, and such fact must be within the knowledge, and the means of proof, therefore, must always be at the command of the accused. If Right to Refuse, Then Right to Re- voke. — The Board has the power to revoke certif- icates issued to individuals for the same reasons it may refuse to issue such certificates. However, it cannot, from mere caprice or without cause, re- voke a certificate, fairly issued, upon sufficient evidence of the applicant's qualifications. 22 The right of the citizen to practice his profession is too important to be taken away from him without some reasonable cause. The revocation must be based upon some act or conduct that would, in common judgment, be deemed immoral, unworthy, dishonorable or clearly unprofessional. Guilt Must be Found. — The revocation of a certificate cannot be sustained when it does not 22 People v. McCoy, 125 111., 289. 116 DENTAL JURISPETJDENCE appear from the record of the proceedings that the Board, from evidence submitted to it, or other- wise, ever found the holder of the certificate guilty of any act or conduct that was unprofessional or dishonorable. Whether the right to practice a profession is property in the technical sense, it is a valuable franchise and one of which a person cannot be deprived without an opportunity, by timely notice, to refute the charges preferred against him. Where a practitioner had a charge made against him of making statements and promises calculated to deceive and defraud the public, of which charges he had no notice, and of which he was never found guilty upon any evi- dence of its truth, an order of the Board revoking his certificate was unauthorized and void, and was set aside by the court. 23 In the case last referred to, the court held that the making of statements and promises by a physi- cian with reference to the treatment and cure of the sick and afflicted, which were calculated to de- ceive and defraud the public, were unprofessional and dishonorable, and would properly subject the offender to a revocation of his license, in a legal manner. Adjudicated Cases. — Among numerous other causes the courts have held that the following are grounds for the revocation of a license to practice medicine or dentistry : 23 People v. McCoy, 125 111., 289. LICENSE 117 Fraud in procuring the license 24 such as, pre- senting a fraudulent diploma ; 25 or one issued to another person ; 26 statements in advertising, that the advertiser can cure all diseases, or statements which are calculated to deceive and defraud the public; 27 gross immorality; 28 sale of intoxicating liquors without a license and without prescrip- tion; 29 criminal abortion; 30 maintaining two of- fices under different names with the intent there- by to perpetrate a fraud upon the public; 31 false advertisement by a dentist as to price, the making of teeth without bridges or plates, the re-enameling of teeth, the tightening of loose teeth, or curing of pyorrhea and other misstate- ments tending to deceive the public and to im- pose on the ignorant and credulous, where a stat- ute provided for revocation for fraud, deceit, misrepresentation or gross violation of profes- sional duties ; 32 an advertisement relating to ve- nereal diseases, in violation of law ; 33 commission of a felony ; 34 accepting money from persons in the last stages of consumption, under the repre- sentation that they were suffering from ca- 24 Curryer v. Oliver, 27 Ind. App., 424. 25 Gully v. Territory, 19 Okl., 187. 26 State v. Roy, 22 R. I., 538. 27 State v. McCrary, 95 Ark., 511. 28 Meffert v. Packer, 66 Kan., 710. 29 State v. Goodier, 105 Mo., 551. 30 Matthews v. Hedlund, 82 Neb., 825; Munk v. Frink, 81 Neb., 631. 31 Rose v. Backster, 7 Ohio N. P. N. S., 132. 32 State v. Purl, 228 Mo., 1. 33 Kennedy v. State, 145 Mich., 241. 34 Spurgeon v. Rhodes, 167 Ind., 1. 118 DENTAL JURISPRUDENCE tarrhal-bronchitis, when he must have known the truth ; 35 advertising to cure incurable diseases, where a statute prohibits the same ; 36 and con- viction of an offense involving moral turpitude. Revocation and Criminal Prosecution. — A li- cense may be revoked for a criminal offense be- fore the party has been prosecuted for the crime, as the criminal prosecution and the revocation of the license are absolutely independent proceed- ings. 37 Jury Trial. — In an action to revoke a license, the defendant is not entitled to a trial by jury, and it is not necessary that the proceedings shall be conducted with that degree of exactness re- quired upon a trial for a criminal offense, in an ordinary judicial tribunal. 38 Statutes of Limitation.— The object of a revo- cation of a license is the protection of society, not the punishment of the licensee. Therefore, the statutes of limitations do not apply to such pro- ceedings and a party may have his license re- voked for an offense for which he cannot be prose- cuted criminally, owing to the statute having run against the offense. 39 35 In re Washington, 23 Ont. Rep., 299. 36 State v. McCrary, 95 Ark., 511. 37Munk v. Frink, 81 Neb., 631. 38 Munk v. Frink, 81 Neb., 631. 39 State v. Stewart, 52 Wash., 61; 11 L. R. A., 557; to re Lowenthal, 78 Cal., 427; Ex parte Tyler, 107 Cal., 78; State v. Schaeffer, 129 Wis., 459; People v. Hooper, 218 111., 313. CHAPTER X CONTRACTUAL RELATIONS General Observations. — As before stated, the relation of patient and practitioner is contractual in character, two consenting minds being neces- sary to create the relation. In other words, it is voluntarily assumed, — not imposed by law as a matter of duty and public policy. In fact most relations in life are voluntary in nature, and a party may avoid their responsibilities by refrain- ing from entering into them, but, generally speak- ing, he cannot enjoy their benefits and emolu- ments without incurring the obligations which the law, as a matter of public policy, imposes there- on. The marriage relation is a good illustra- tion. Contracts. — Not only is the relation in question founded on agreement of the parties, express or implied, but also all transactions between a prac- titioner and his patient are based upon contract and, therefore, the general principles of the law of contracts apply. In its widest acceptation, contract is the basis of social and political organization. In this meaning of the term all obligations of the indi- 119 120 DENTAL, JURISPRUDENCE vidual to society or to government result from his implied agreement. Here, contract is synony- mous with duty. The individual has contracted to do and to refrain from doing all that which, in the then conception of right and wrong, it be- comes his duty to do or not to do. But, accord- ing to the use of the term in law, contract has a more definite meaning. " Jurisprudence is con- cerned with such rights only as are recognized by law and enforced by the power of the State." A right which cannot be enforced in law is an im- perfect obligation. Definition. — "A contract is an agreement be- tween two or more competent persons, upon suf- ficient consideration, to do or not to do some law- ful thing." 1 Kinds of Contracts. — Contracts may be said to be express or implied, and the latter may be again divided into (a) those in which the agree- ment is a natural and reasonable inference from the circumstances of the transaction, and (b) those where the law imposes the duty as a matter of public policy irrespective of the real intention of the parties. The latter are sometimes called constructive contracts. 2 An express contract is one in which the parties have declared orally or in writing the terms of their agreement. 1 2 Bl. Com., 446. 2 Hertzog v. Hertzog, 29 Pa. St., 465, CONTRACTUAL RELATIONS 121 An implied contract is one in which the terms of the agreement are an inference of fact or law deduced from the conduct of the parties in rela- tion to its subject matter, or imposed by law as a matter of duty. In this sense, contract may be conterminous with legal duty. It is a well rec- ognized maxim, though not of universal applica- tion, that whatsoever a man ought to do the law supposes he has promised to do. "Implied con- tracts are such as reason and justice dictate and which, therefore, the law presumes that every man undertakes to perform." 3 In the first class of implied contracts above referred to, the agree- ment or promise is signified by some other means or symbols than words ; thus, where a person or- ders and accepts goods at a store and says noth- ing further, there is an implied promise, from the order and acceptance, to pay for them. There is an inference that the person who receives the benefit of labor expended or professional services rendered, promises to pay the reasonable and cus- tomary charges therefor. Thus, a sick patient impliedly agrees to pay a consulting physician for his services, even though, as between the phy- sicians, or as between the patient and the attend- ing physician, the attending physician agreed to pay him. 4 The same inference applies in the case of the employment of an assistant or consulting 3 2 Bl. Com., 443. 4 Shelton v. Johnson, 40 la., 84; Garry v. Stadler, 67 Wis., 512. 122 DENTAL JURISPRUDENCE attorney; in the absence of other understanding, the client who knowingly accepts the services is liable therefor. In the second class of implied contracts, the inference of an agreement or promise is a pure fiction. It is sometimes made not only (a) in the absence of, but also (b) in direct conflict with, the real intention of the obligor. The want of inten- tion is illustrated in the case of treasure-trove which the finder converts to his own use in the belief that the owner is unknown. If the owner appears, and claims and proves his ownership, the law raises a promise on the part of the finder to compensate him for the value of the property converted. Where the inference of law is in op- position to the real intention of the obligor ap- pears in the case of a thief taking and appropri- ating to his own use the property of another. Here the law raises a promise to pay the value of the property on demand, and in an action by the owner to recover for the goods thus wrong- fully taken, the thief will not be permitted to show that he did not intend to pay for them. A contract may be partly express and partly implied, partly oral and partly written; but, where there is a complete express contract, there cannot be an implied contract inconsistent there- with. An express and an implied contract cannot both exist in the same part of a transaction, or touching the same right or obligation. Where an CONTRACTUAL RELATIONS 123 express contract is shown, there cannot be main- tained an action based upon an implied agreement as to the same matter, neither against a party nor against a third person. 5 An express agree- ment necessarily excludes an implied one. 6 What is implied in an express contract is as much a part of it as what is expressed. 7 A written contract is one which, in all its terms, is re- duced to some form of written language. 8 All prior propositions are superseded by the written agreement, and all prior and contemporaneous stipulations, material to the contract, are merged in it. 9 The written contract is presumed to con- tain all the agreement and when it appears to be complete the burden of proof is upon the party who seeks to establish the contrary. But where only part of a contract has been reduced to writ- ing, extrinsic evidence is admissible to show the complete contract. 10 When a written contract is so incomplete as to require resort to extrinsic evi- dence to make it enforcible, it may be treated as an oral contract. 11 Delivery. — A written contract takes effect, if at all, upon delivery, unconditional and as a con- tract. Where there is no delivery there is no 5 Shaw v. Graves, 79 Maine, 166; Ford v. MeVay, 55 111., 119. 6 Ramming v. Caldwell, 43 111. App., 175. T Hart v. Otis, 41 111. App., 432. 8 Memory v. Niepert, 131 111., 630. 9 School Dist. v. Stilley, 36 111. App., 135; Covel v. Benjamin, 35 HI. App., 299; Casselberry v. Warren, 40 111. App., 627. 10 Covel v. Benjamin, 35 111. App., 299. li Plumb v. Campbell, 129 111., 106; Wood v. Williams, 40 111. App., 117. 124 DENTAL JURISPEUDENCE contract. 12 If delivery is conditional, the condi- tion must first be performed. 13 Executed and executory is also a classification. In an executed contract both parties did all that they were required to do under the agreement, at the time the agreement was made. It creates rights in rem; it gives title to property at the time of its execution. Technically, this is not a contract at all. When the agreement is reached, all acts are performed and, in the absence of fraud, accident or mistake, that is the end of it. Each has received something as an equivalent for what he gave. In an executory contract something remains to be done by one or both parties after the execu- tion of the contract. It contemplates something in the future, and creates rights in personam and in rem. Executory contracts must have the qual- ity of mutuality; if one of the parties is bound, the other must be bound; if one is at liberty to refuse performance, the other cannot be compelled to discharge his promise. 14 Parties. — Two competent parties are essential to the making of a contract. A person cannot contract with himself. 15 Any person not under legal disability is compe- tent to contract. Infants and persons of unsound 12 Bierdeman v. O'Connor, 117 HL, 493. 13 Jordan v. Davis, 108 111., 336 14 Weaver v. Weaver, 109 HI., 225. 15 Nelson v. Hayner, 66 111., 4A7. CONTRACTUAL KELATIONS 125 mind do not have full legal capacity to become parties to binding obligations, and courts will set aside contracts which are not manifestly to their advantage. However, to justify the setting aside of a contract on the ground of mental incapacity of one of the parties to it, the mental debility must be such as, in law, renders the person in- capable. 16 Infants may make binding obligations for necessaries actually furnished them, but not for money loaned them though subsequently in- vested in necessaries. Necessary dental treat- ment is a legal necessity, within reasonable limits, for which a minor will be held liable. 17 Consideration. — The law of contract is a natu- ral concomitant of the private ownership of prop- erty and the necessary exchange thereof occa- sioned by diversification of industry and the wants and desires of men. In a business sense, contract may be considered as having its origin in the transfer of private property. Even a con- tract for services, while not immediately referring to property, usually contemplates, in its ultimate analysis, ike production of values as the result of the services. The parties have in view this fact at the time of the agreement. The effect of la- bor expended in value produced, or wants satis- fied, is the basis of the negotiations. How much value or satisfaction will the exertion of muscle 16 Perry v. Pearson, 135 111., 224, 230. l7Gilman v. Andrus, 28 Vt., 241. 126 DENTAL JURISPRUDENCE or brain create, is the question upon which the contract depends. Equivalence. — The idea of equivalence enters into every business transaction. In matters of business a man does not part with his right to an article which is capable of satisfying some want without receiving therefor the satisfaction of some desire or some other article equally and similarly potent. Therefore, two things of value, and only two, are essential to every contract, namely (a), the thing given, and (b), the thing received. These are called the consideration. In the preliminary stage of a contract, the minds of the parties weigh and compare these two things. When they agree as to the equality of their values, the exchange of the right therein is made and the contract is complete. This comparison of values is a matter entirely for the parties to the contract, and when, in the absence of fraud or undue in- fluence, they have agreed upon their equivalence, the question will not be investigated by legal tribunals. Courts will not revise the judgments of the parties to a transaction in the matter of the equality of the respective considerations. The inference is that, on entering into a contract, every man intends at least to acquire an equiv- alent for what he gives. Where nothing is to be received, the inference is that there has been no agreement. Courts will not enforce performance of a promise for which there has been no consid- CONTRACTUAL RELATIONS 127 eration. This was the case in the civil law, in which such an agreement is called a nudum pac- tum. In such cases the obligee did not change his position and is in no worse situation by rea- son of the promise having been made, and, there- fore, has no standing in court when he seeks to enforce performance of a gratuity. Promise for Promise. — One promise is sufficient consideration to support another promise. 18 Benefit or Detriment. — Any benefit to the promisor or detriment to the promisee is sufficient consideration for a promise. 19 Thus, dental serv- ices rendered by A to B or to C, at the request of B, are sufficient to support B's promise to pay A therefor. The consideration must consist of a present act or of a future act promised. The act cannot be in the past. 20 While the acceptance of the services of a den- tist raises an implied promise to pay what those services are reasonably worth, the mere fact that such services are beneficial to the patient does not justify such inference; thus it may be of lasting benefit to the patient to have had a tooth ex- tracted, but the dentist cannot recover for his services in performing the extraction, if it was done over the objection of the patient. Effect of Signing Contract. — Where a party, adult, of sound mind and able to read and write, 18 Bishop v. Busse, 69 111., 403. 19 Buchanan v. International Bank, 78 111., 500. 20 Johnson v. Johnson, 31 Pa. St., 450. 128 DENTAL JUEISPKUDENCE and who has had full opportunity to read a con- tract, signs it without reading he is bound by its terms and provisions, in the absence of fraud or other equitable considerations. 21 Constitutional Right to Contract.— The right to enter into contracts is as sacred as life, liberty or the pursuit of happiness. The inviolability of the obligations growing out of contract, equally sacred as the right of contract itself, is a matter of supreme moment to industrial prosperity. The en- forcement of such obligations is a duty imposed up- on legal tribunals wherever government assumes to protect the business affairs of men. Impressed with the importance of maintaining inviolate the right to demand fulfillment of promises according to their terms, the framers of the Federal Con- stitution provided therein that no State shall pass any "law impairing the obligation of contract." This obligation may not be impaired by a State through its Legislature ; 22 nor by its courts ; 23 nor by the people of the State. 24 This inhibition applies to contracts to which a State is a party, and to cases where the contract is in the form of a statute, or grant. 25 Both executed and execu- tory contracts are included in this constitutional provision. 26 21 Seymour v. Mackay, 126 111., 350. 22 People v. Canal Trustees, 14 111., 420. 23 Harmon v. Auditor, 123 111., 122. 24 Railroad Company v. Hoyt, 1 111. App., 374. 25 Bruce v. Schuyler, 4 Gilm., 221. 26 Dartmouth College v. Woodward, 4 Wheat., 51 CHAPTER XI BUSINESS RELATION Manufacturer and Buyer. — Where a plate or other similar removable article of prosthetic den- tistry is the subject matter of the contract, the laws relating to the production and delivery of other personal property are applicable. The den- tist is in the position of a manufacturer or pro- ducer, and the patient becomes a buyer or con- sumer. Delivery. — Since the purpose of the employ- ment is the production of an article for personal use, delivery of the article in question is essential to consummate the transaction, though liability for the price may arise when the dentist is ready, able and willing to deliver in accordance with the terms of the contract. Time of Deliveey. — The question of the time of delivery may appear in many different forms and under many different circumstances. Thus, (1) there may be no time for delivery mentioned, or (2) the time may be specified and, if specified, (a) a day certain may be named, or (b) it may be expressed by a period within which, or (c) it may be indefinitely characterized, or (d) it may be when notified, or (e) to call for. 129 130 DENTAL JURISPRUDENCE No Time Fixed. — Where no time is fixed for completing the work, the law implies that it will be done in a reasonable time. The law always looks at matters of this kind in the light of rea- son and, in the case mentioned, presumes that it was within the minds of the parties at the time that the work was to be done within a reasonable time, having in view all the circumstances of the case, known to both parties. Specified Date; A Day Certain. — If the con- tract stipulates a fixed time for delivery, then time is considered of the essence of the contract, and if delivery is not made at the time agreed upon, the patient is not bound to take the arti- cles, and even though accepted, the patient may have a right of action to recover any damages ac- tually sustained by reason of the delay, though the circumstances would have to be extreme and the damage certain, to warrant recovery for mere delay. Generally speaking, acceptance makes the patient liable for the price, and is usually con- strued to be a waiver of delay. However, delay beyond the date agreed upon, without the consent of the patient, puts the burden upon the dentist, and, if the patient in good faith insists upon his right to rescind the contract, and refuses to take the articles, the former will be put to the neces- sity of showing that the delay arose from causes beyond his control, from the fault of the patient or other excusing cause. BUSINESS RELATION 131 Delivery Within a Certain Period. — Where the work is to be furnished between certain specified dates, as between the 15th and 20th of the month, the practitioner has until the last date mentioned in which to perform. 27 Indefinite Time. — (a) Next Month. — An agree- ment to complete work during "next month" gives the operator all the calendar month follow- ing the calendar month in which the promise was made, and delivery on the last day of said month would be a compliance with the promise, while an agreement to furnish "within a month" would be construed to mean within thirty or thirty-one days from the date of promise, and the operator would have until the corresponding day, less one, of the following month to complete his work. Agreement to furnish during "first half of next month" would give the practitioner all of the 15th day of the succeeding month, if it had thirty days, and until noon of the 16th, if 31 days. 28 At Once. — An agreement to supply an article at once will be construed by the courts to mean with- in a reasonable time ; but it admits of no delay, under the circumstances. 29 Shortly. — Where the articles are to be supplied "shortly," the law applies the same rule of rea- sonableness, as it indicates that the party mak- ing the promise did not mean to fix an exact time 27 Harman v. W. Fuel Co., 228 111., 298. 28 Grosvenor v. Magil, 37 HI., 239. 29 Tuft v. McClure, 40 la., 317. 132 DENTAL JURISPRUDENCE within which to perform, and is given such lati- tude as will be reasonable under the circum- stances. When Notified. — Where the dentist agrees to notify the patient when the work is done, the patient cannot be in default until after such no- tice is given. In the absence of special agreement as to character of notice, any means by which the fact that the work is completed is brought to the knowledge of the patient by the dentist will be sufficient. The burden is upon the dentist to show actual notice, or circumstances which will excuse the same; such as, departure by the patient to parts unknown and failure to notify the dentist for an unreasonable length of time. In such event, the latter should take the precaution to mail a notice, postage fully prepaid, to the pa- tient's last known, or last given, post-office ad- dress, in order to forestall any claim on the part of the patient, when found, that he understood he was to be communicated with in that manner. "Where there has been some special means of com- munication between the parties, such as, by a mu- tual friend, that method of sending notice should be adopted in any event, if practical, and such others as the circumstances will permit or as ap- pear reasonable. Call For. — Where the patient agrees to call for plates at a fixed time, the dentist will have complied with his contract if he is then able, ready BUSINESS RELATION 133 and willing to deliver upon performance by the former. An agreement to call for the article without specifying the time requires the patient to act within a reasonable time under the circum- stances, and any damage resulting from his fail- ure or default in this respect must be borne by him. In order to avoid misunderstanding, how- ever, and, possibly, to charge the patient with knowledge of what is a reasonable time, the prac- titioner should notify the patient that his work is ready. In all these matters the latter should be ready to do more than the law requires as he may thereby avoid unpleasant situations and pos- sibly litigation. Conditional Delivery. — If a plate is delivered to a patient for the purpose of trying it out, with instructions to return it for further fitting, the delivery would not be final, and should the pa- tient return and give the plate into the possession of the dentist in accordance with that understand- ing, the latter may refuse to give the plate to the patient until he has been paid for same, unless there was a specific agreement inconsistent with such position. The contract is executory and no title passes to the patient until the article is com- pleted and delivered with the intention of mak- ing it the property of the patient. Place op Delivery. — If the patient comes to the office of the dentist for treatment and the taking of impressions, and nothing is stated as to 134 dental' jurispkudence where the plates are to be delivered, there would be an implication that the place of delivery is the dentist's office, while in the case of the itinerant dentist, who goes to the patient's abode, there would be an implication that the plates were to be delivered at the patient's residence, in the ab- sence of an express agreement with reference to the matter. If the agreement is merely to have the work ready at a certain time without mention- ing the place of delivery, and if all the work has been done and the negotiations had at the office of the practitioner, the place of delivery would undoubtedly be at the office and, under such cir- cumstances, in any event, a notice that the plates are ready at the office to be delivered when called for, will be sufficient compliance with the contract. Generally speaking, in mercantile affairs, where no place is designated, and there is no custom of trade in the premises, the place where the goods are located or produced is usually regarded as the place of delivery. Effect of Delivery. — Ordinarily the patient has no title in a plate or similar article until it is delivered to him, even though payment was made in advance, but the unconditional delivery of a completed article to a patient, when not induced by his fraud, or circumvention, or by legal mis- take, invests the title thereto absolutely in the pa- tient. The dentist has no claim or hen upon it for the satisfaction of his fee and, should it again BUSINESS RELATION 135 come into his possession, lie cannot retain it for the purpose of enforcing payment. If delivery was brought about by the fraud of the patient he acquires no title to the article, and if the dentist can repossess himself of the same, he holds it with all his rights to its detention as though he had never in fact parted with the actual possession. Where the work is placed in the patient's pos- session on certain conditions, title will not pass until the conditions are complied with. If, after time for delivery, and offer in pursuance there- of, the article is destroyed or lost, without the fault of the practitioner, the patient must bear the burden of the loss, — he will still be liable for the price. However, if anything remained to be done upon the article, the loss would fall upon the practitioner. To Whom Delivery May be Made. — In prac- tice, the patient generally calls at the office for a plate or other detachable work, but an order by a patient to deliver to some other person, or to send by mail or express, will be sufficient author- ity to the practitioner for pursuing the desig- nated course, and delivery to the person specified, or depositing in the mail or express, properly ad- dressed, with postage or expressage prepaid, will meet the requirements of law and the patient will be liable for the price though the article never reaches its destination. Payment. — If nothing was said by the parties 136 DENTAL JURISPRUDENCE as to the time of payment, the law presumes that payment was to be made on delivery. When pay- ment is to be made at the time of delivery of the work, the offer to deliver may be conditional on payment, and such offer will meet the require- ments of the law. An offer to deliver upon pay- ment will be a sufficient compliance with the con- tract to establish the liability of the patient. If payment was to be at a fixed time, not arrived at, or at a stated time after delivery, the offer to deliver must be unconditional as to payment, and, if made conditional thereon, it is not an offer. The offer to deliver must be in conformity with the contract as to time, manner, place and cir- cumstances. A dentist, however, may do more than his contract requires and still be within the spirit and terms thereof. Thus, where plates were to be delivered at his office at a specified time, and the patient neglected to call at the time, he may tender them at the residence of the pa- tient and thus fix the patient's liability. Default in Delivery. — Whether the delay in de- livery according to agreement is a breach of the contract, depends upon the circumstances. Where the failure to deliver was the fault of the patient, the practitioner may insist on fulfilling the contract within a reasonable time after the agreed date, taking into consideration the pa- tient's conduct which occasioned the delay. Thus, conversely, the patient will not be permitted to BUSINESS RELATION 137 take advantage of a delay occasioned by his own fault, neglect or refusal to keep appointments, or by conduct evincing a desire to avoid the contract and elude the responsibility of its performance. "Where the default is due to the dentist's fault the patient may refuse to accept. Acceptance. — Delivery and acceptance are re- ciprocal duties. The use of a plate by a patient does not necessarily denote acceptance, if it is done for the purpose of testing its fitness, or while the practitioner is trying to remedy de- fects or make a fit. 30 Of course, the patient may accept the work at any time, either before or after the specified time of delivery, or even after an unreasonable delay, and, on acceptance, he be- comes liable for the price and, possibly, waives any claim for damages by reason of the default. A patient cannot escape liability by merely refus- ing to accept. Eefusal, to be availing, must be justified in law. On Trial. — If work of a prosthetic detachable nature, such as a plate, is furnished on trial, the patient may accept or reject according to the terms of the special contract, but if he retains the plate for an unreasonable length of time with- out making any objection, his conduct may be such as to justify an inference that he has accepted the work and, in that event, he will not be heard to complain when he is called upon to pay for the Crabtree v. Potts, 108 111. App., 627. 138 DENTAL. JURISPRUDENCE same. If delivery was unconditional, title passes to the patient on acceptance. Seasonable Time. — What is a reasonable time within the meaning of the law, for performing any act, or discharging any duty or obligation, must be determined from a consideration of all the facts and circumstances of each particular case, as well as of the subject matter to which it refers. Reasonable Opportunity. — The patient must give the dentist a reasonable opportunity to do the work properly and he must submit to reason- able fittings and other necessary steps in the progress of the work, and if he fails or refuses so to do, he may be held liable for the agreed price, or where no price has been agreed upon, then for the reasonable value of the services as measured by the detriment to the practitioner, which will usually be the value of his time and material. If, with reasonable time and opportu- nity afforded him, the dentist fails to make a rea- sonable fit in the case of a plate, the patient may quit him without incurring any liability for labor, and material in respect to the same, but his lia- bility for services in preparing the mouth by ex- tracting teeth and treating gums and teeth, will depend upon other facts which may or may not be affected by or related to the preparation of the plate. Specified Material. — An agreement to furnish a plate or other article of a given material, is not BUSINESS RELATION 139 complied with by offering or supplying a plate entirely different. In such case the patient may elect to take or entirely refuse the substitute. If he retains the substitute for an unreasonable length of time after knowledge, or after he should have known that it was not what he had contracted for, he will be presumed to have accepted it and must pay what it is reasonably worth ; but, in the absence of specific notice and consent, he will prob- ably not be liable for an amount in excess of the original contract price. Quality, Workmanship, etc. — Where nothing is said about the quality of the material to be used, or the workmanship to be displayed, no particular quality of workmanship will be implied, and, while the highest quality and best workmanship cannot be exacted, still the obligation will not be met by furnishing the poorest. "What will be required under such circumstances is fair, average, ordi- nary quality and workmanship. 31 If there is a specific agreement as to these attributes the ar- ticle must be in substantial compliance therewith, and any material departure therefrom will excuse the patient for refusing to take the same. What- ever the agreement as to quality and workman- ship, and however cheap the price to be paid, a plate which does not reasonably fit the patient's mouth, and which, for that reason, is useless to him for the purpose for which it was intended, 31 Simonds v. Henry, 39 Me., 155; Wilson v. Lawrence, 139 Mass., 318. 140 DENTAL JURISPRUDENCE cannot be considered to be a compliance with the general contract to make a plate as a substitute for dentures which are gone. He is justified in refusing to accept such article. Defects. — Any defects, latent or patent, must be made good by the practitioner, unless it is ex- pressly understood that the practitioner is not to do the prosthetic work in person, or by his as- sistants, but that he is to have the same done by a commercial laboratory, in which latter event he will be liable only for patent defects discoverable by ordinary inspection by an experienced and skilled person. 32 Rescission. — An order by a patient for such ar- ticles as dental plates, may be arbitrarily re- scinded by him at any time. In such case the den- tist may recover the damages he sustained by the rescission as of that time, measured by the rea- sonable value of his services and materials. His right to sue accrues at the moment of the rescis- sion. He cannot complete the work and then re- cover for services rendered or materials fur- nished after notice of abrogation. If the patient dies before the time for delivery and the work is completed at the time of death, or at the time the dentist hears of the death, he may recover the contract price though the plates were in fact never delivered. However, if he learns of the death be- fore the work is completed, he should cease at 82Archdale v. Moore, 19 111., 565. BUSINESS EELATION" 141 once, since his recovery would be limited to the value of the services rendered and material con- sumed at the time he received the information. 33 Sensitiveness of Patient. — It frequently occurs that patients experience great inconvenience in learning to wear a plate and, in the absence of a specific agreement to the contrary, the dentist's obligation does not go to the extent of insuring his patient against such trouble, as his duty ends when he produces a reasonably fair, good-fitting, workmanlike article. Work to the Satisfaction of the Patient. — Gen- erally speaking, an agreement to do work for an- other, to his satisfaction, means to do such work as he ought, in good faith, to be satisfied with. Where a practitioner agrees to do work which will suit his patient, the patient cannot avoid re- sponsibility by captious objections, unfounded complaints, trifling defects not going to the real merits of the case, or dishonest design with a view of avoiding liability. In law, a man is satisfied where, in good faith, he ought to be satisfied. 34 Since the object of the trans-action, however, is known to the practitioner to be the supplying of a personal convenience, the gratifying of a per- sonal taste, bias or sensibility, or the satisfying of a personal preference, the burden is upon him to show that the objections are, in fact, not of- 33 2 Meacham, Sales, Sec. 1091 and 1092. 34Keeler v. Clifford, 165 111., 544, 548. 142 DENTAL JURISPRUDENCE fered in good faith. In all such, or similar, cases the law requires the patient to act in perfect good faith and exercise an honest, unselfish judgment. 35 35 Baltimore v. Brydon, 65 Md„ 198. CHAPTEE XII MISCELLANEOUS SUBJECTS Goods, Wares and Merchandise. — In 1678, in the 29th year of the reign of Charles II of Eng- land, there was passed by the British Parliament a statute entitled "An Act for the Prevention of Frauds and Perjury." The 17th Section of Chapter 3 of said Act runs as follows : "No contract for the sale of goods, wares and merchandise for the price of £10 Sterling and up- wards, shall be allowed to be good except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the par- ties to be charged by such contract or their agents thereunto authorized." Statutes, which are substantial copies of the foregoing, are in force in some of the states. The law applies to such contracts only as relate to goods* wares or merchandise. Ordinarily pro- fessional or other services do not come within the purview of the law. Where work and labor are the subject matter of the transaction the law is 143 144 DENTAL JURISPRUDENCE not operative. The determination of whether or not a contract is for work and labor performed or for goods, wares or merchandise, has been at- tended with much discussion and difficulty. It is not always self-evident into which of these two categories the subject matter of the contract falls. When, at the time of making the bargain, the par- ties contemplate the ultimate delivery of a chat- tel, the contract is considered as being for goods, wares and merchandise, within the meaning of the statute. In an English case, a lady ordered of a dentist a set of artificial teeth which, by the terms of the agreement, were to be fitted to her mouth at a price in excess of £10 Sterling, but before they were so fitted she died. The den- tist brought an action against her executor for work and labor performed and material furnished, but the court held that the contract was for goods, wares and merchandise, came within the statute and, not being in compliance therewith, no recov- ery could be had upon it. 1 The basis of this de- cision was the idea that the plates were distinct pieces of property and properly came under the designation, — goods, wares and merchandise. Had the work been the treatment or filling of a tooth there is no doubt that the decision would have been the reverse, as such relation would clearly be one of professional services. It would l Lee v. Griffin, 1 E. B. MISCELLANEOUS SUBJECTS 145 appear also that if the object of the services had been the crowning of a root or the bridging of an interdental space by means of a fixed bridge, since the completed work could not be said to be the delivery of a separate and distinct article, the contract should be considered one for professional services. An article which is made a fixed part of the person, and which must be so fixed to the person before the contract is completely executed, cannot be considered as a contract for the deliv- ery of a chattel, but rather the repairing of a part of the human mechanism. The delivery would not be complete until the attachment was made and, in such case, a delivery would really involve a delivery of the patient himself, and the law can- not possibly contemplate any such interpretation of the contract. It would appear that the only services rendered by a dentist, in which the par- ties may be said to contemplate the ultimate de- livery of an article of personal property, is in the case of removable plates involving either partial or complete denture. In states where the law is in force, the dentist making plates for a patient, at a price which brings the contract within the law, must see that all legal requirements are com- plied with, otherwise he may find himself with a useless plate on his hands and no remedy against the patient. As a general proposition, a contract which is 146 DENTAL JURISPRUDENCE valid at the place where it is executed, is valid any place in the world. 2 Guaranty. — If the work be done for a person on the guaranty by another that the services will be paid for by the guarantor, if needs be, the guaranty should be in writing ; but if the services be rendered upon an unconditional promise of a third person to pay for them, the promise need not be in writing, but the credit should be given to the promisor, and not to the party for whom the services were rendered. The test is, Was the whole credit given to the third person? If the undertaking of a person who agrees to answer for another is collateral or conditional, it must be in writing, but if direct and original it need not be. 3 Where the guaranty is in writing the account may be kept in the name of the patient; but if the third person is to be held as an original obligor, the account should be entered in his name. Doing the work at his request is sufficient consideration for his promise to pay whether di- rect or collateral, regardless of his relation to the beneficiary of the services. In other words, the consideration for a promise may be either a benefit to the promisor, or a detriment to the promisee. 4 Courts will not enforce promises for 2 Pecks v. Mayo, 14 Vt., 33 ; Roundtree v. Baker, 52 111., 241 ; 9 Cyc, 672. 3 Smith v. Hyde, 19 Vt., 54. i Morgan v. Park National Bank, 44 111. App., 582. MISCELLANEOUS SUBJECTS 147 which there has been no consideration. Such promises are imperfect obligations and are called naked promises. Where a person called at the office of a physician in a hotel and, on being in- formed that the physician was out, wrote on a card, having his own name and address printed thereon, the words "Call on Mrs. Day at No. 769 Broadway" and handed it to the hotel clerk with the request to give it to the physician and tell him to go as soon as possible, and, where it did not appear that credit was originally given to the pa- tient, and where a jury found for the physician under all the circumstances, the court held that such person became liable to pay for the physi- cian's attendance and services upon Mrs. Day. 5 It must appear from the evidence that the physi- cian understood that the party calling him was to be responsible and this understanding must have been either by direct statement or reason- ably deduced from all the evidence and circum- stances in the case, and it must also appear that the physician extended the credit in the first in- stance to the third person. 6 Receipt. — A receipt in writing is not conclusive, but is open to explanation, correction or contra- diction by oral testimony or other evidence. It is regarded as evidence of a high character and, 5 Bradley v. Dodge, 45 How. Pr., 57; Clark v. "Watterman, 7 Vt., 76, 6 Starrett v. Miley, 79 111. App., 658. 148 DENTAL JURISPRUDENCE to overcome it, the evidence should be clear and convincing. 7 A receipt in full of a liquidated claim is not conclusive evidence of payment in full, and is subject to contradiction and explanation. In the absence of other proof it establishes pay- ment in full. 8 Payment, in part, of an undisputed claim, which is due, is no consideration for an agreement that the payment shall be in full, be- cause the debtor has done only what he was legally bound to do, and, after such partial payment, the creditor may proceed to collect the balance, but a partial payment before due may be a sufficient consideration for an agreement to release the balance. 9 The compromise and settlement, for any reason- able consideration, of a doubtful or speculative claim, is a sufficient consideration when made with knowledge and without fraud, and receipt in full, in connection with such compromise, is binding on the party giving it. A receipt in full for an unliquidated or honestly disputed claim, accepted in good faith and obtained without fraud, is bind- ing on the party who issues it. Thus, where a dentist has no agreement as to his charge for 7 Walrath v. Norton, 5 Gilm., 437; Cunningham v. Baars, 36 Minn., 350, 353 ; Winchester v. Grosvenor, 44 111., 425 ; Rockford R. Co. v. Rose, 72 111., 183. 8 Lyons v. Williams, 15 111. App., 27; Neal v. Handley, 116 111., 421. 9Wolford v. Powers, 85 Ind., 294, 304; Smith v. Bartholomew, 1 Mete. (Mass.) 276; Smith v. Phillips, 77 Va., 548; Shepard v. Rhodes, 7 R. I., 470. MISCELLANEOUS SUBJECTS 149 services, his claim would be said to be unliqui- dated, and if the patient honestly and in good faith misunderstood the terms and conditions, or honestly disputed the value of the services, the acceptance of a payment and the giving of a re- ceipt in full, as a condition thereof, would be binding on the dentist. A written instrument which operates both as a contract and a receipt, may be enforced as a contract and be corrected or contradicted as a receipt. 10 Release. — A release is a quittance, remission or discharge of a right of action. It is a unilateral contract. As, in the case of all other contracts, a release must be supported by a consideration. The agreement may be oral but it is advisable to reduce the same to writing and have it executed under seal. In fact, the term release implies a writing under seal. 11 At common law a seal im- ports consideration and obviates the necessity of introducing any other evidence of that fact. A written release, like any other written contract, cannot be contradicted, varied or modified by parol evidence. A receipt is not a contract, it is only an admission of payment and may be contradicted, modified or impeached. 12 A receipt is merely evi- dence of the fact of payment, while a release extinguishes a preexisting right; and, while a re- 10 Hossack v. Moody, 39 111. App., 17. ill. C. R. R. Co. v. Read, 37 111., 484, 511. l2GiUett v. Wiley, 126 111., 310. 150 DENTAL JURISPRUDENCE ceipt in full may be explained or modified or con- tradicted, a release, nnder seal, forever estops and concludes the party. 13 i3Frink v. Bolton, 15 111., 343; Crane v. Ailing, 15 N. J. L., 423: Equitable Security Co. v, Talbert, 49 La. Ann., 1393. CHAPTER XIII ADMINISTRATIVE LAW Courts. — A court is a judicial tribunal consti- tuted by the supreme power in the State to in- terpret and apply its laws, and to enforce certain rights and redress certain wrongs. The entire force of the Nation is behind the court to enforce its mandates. Jurisdiction. — Definition. — Jurisdiction is the power or right to hear and determine. The right must extend to the subject-matter of the contro- versy, and to the person of the litigants. A court derives jurisdiction of the subject-matter, expressly or impliedly, from the authority which creates it, while jurisdiction of the person is ac- quired by notice in accordance with the provi- sions of law. Notice. — Wherever there are courts, some form of notice to the party to be affected, is indispen- sable to the right of the court to proceed against him. Notice, in time for a reasonable opportu- nity to be heard, is inherent in human ideas of justice. In civil matters the actual presence of the defendant is not essential to the power of the court to proceed, when it appears that the party 151 152 DENTAL JURISPRUDENCE has been given due notice under the law. Under certain circumstances courts may proceed against property which is within its territorial jurisdic- tion, even though it cannot reach the owner per- sonally by its process. Effect of Judgments. — When a court has juris- diction, its orders and judgments are binding upon all parties to the suit, and their privies, and its decision is binding on the parties in all subsequent litigation involving the same points. On the other hand, if it does not have jurisdiction its decrees are an absolute nullity and are binding upon no one, not even the parties to the suit nor itself. Procedure. — It is necessary for a court to pro- ceed in accordance with established usage or prescribed rules. Procedure in court is a develop- ment, and originated in customs. Courts must follow the established mode of procedure. Wherever English jurisprudence prevails, the in- terrogating lawyer can determine in a large meas- ure the course of testimony. The witness may be confined to categorical answers to specific ques- tions propounded to him. He may even be re- quired to answer a specific question by either "yes" or "no," and if he says he cannot so answer, his testimony thereon may be limited to that admission. Purpose of Eules. — The object of rules of pro- cedure, including introduction of evidence, is to ADMINISTKATIVE LAW 153 enable the court to control the character of evi- dence introduced and confine it to the point at issue. All answers to direct interrogatories must be responsive to their respective questions, and confined to the purview of the questions to which they respond. Any answer or part of answer which does not meet these requirements will be stricken from the record, on motion. This is in striking contrast with some Continental systems of jurisprudence. In certain actions in some Con- tinental jurisdictions, it appears that the witness is permitted to harangue the court and jury with- out any right or power on the part of counsel to interfere with his tirade. He may comment upon the effect of testimony, may boast of the promi- nence of himself and the importance of his state- ments and conclusions, may give his opinion on the guilt of the accused, may berate the defendant from the witness chair and even refer to matters of hearsay several persons removed. Hearsay. — An important rule of evidence in the jurisprudence of English-speaking people is the exclusion of hearsay testimony. It comes clothed in too much uncertainty to give it any weight and, except in rare cases, it is not admissible for any purpose. Our law indulges no presumption or inference of the truth of a fact in issue merely because a witness states that someone, not before the court, asserted its existence, directly or in- directly, to the witness. Ordinarily, if the party 154 DENTAL JUKISPRUDENCE is not before the court where he can be put under oath and cross-examined, and the source of his information inquired into, his statements will be excluded. 1 Statements of Patient: — The statements of a patient relative to his condition, made in good faith, to his dentist or physician for the purpose of professional treatment of such condition, are not hearsay if they later become relevant to the issue of a suit in court. Even though such state- ments are favorable to the contention of the pa- tient in the suit to which he is a party, the prac- titioner may testify thereto and repeat them from the witness stand. 2 Evidence. — Evidence is that which demon- strates, tends to establish or make clear or certain the truth or falsity of a fact in issue. It is any matter of fact, the effect, tendency or design of which is to produce in the mind a persuasion, af- firmative or negative, of the existence of some other matter of fact, and includes all the means, whether of fact or opinion, by which an alleged fact, the truth of which is submitted for investi- gation, is established or disproved. Opinion Evidence. — Opinion evidence is testi- mony in the form of an opinion based upon facts proved or assumed, concerning a matter involv- ing scientific or technical knowledge not within the 1 Grubey v. National Bank, 133 111., 79; Kent v. Mason, 79 111., 540. 2 37 L. R. A. (0. S.) 199; Railroad Co. v. Carr, 170 111., 478; Wigmore Ev., 2208. ADMINISTRATIVE LAW 155 experience of the ordinary witness.. 3 The law does not look with favor upon the introduction of opinion evidence. As a rule, witnesses are re- quired to testify to facts directly within their knowledge ; it is for the court or the jury to draw conclusions and form opinions from the facts thus brought before them. Testimony. — Testimony is the statement or declaration of a witness before a court for the purpose of establishing or refuting some fact in issue. It is a branch of evidence and is the means by which certain facts, within the knowledge of persons, are brought before the court when the same are material to the issues in the case. Witnesses. — A witness is one who gives testi- mony in a case before a court, and includes every person from whom testimony is received to be used in a judicial proceeding. 4 All testimony must be given either on (a) oath or (b) affirma- tion. Generally speaking, a witness may testify only to facts, circumstances and conditions which have been brought to his knowledge by means of one or more of the senses, but he may not state inferences or conclusions drawn by him from such observations or from admitted facts. Opinions of Ordinary Witnesses. — In actual practice, however, there are a great variety of subjects in which ordinary testimony savors of 3W. C. R. Co. v. JP'ischmann, 169 111., 196. 4 Baker v. Coit, 1 Root, 225; Bliss v. Scheman, 47 Me., 252. 156 DENTAL JURISPRUDENCE opinion evidence. Thus, an ordinary witness may state his opinion (1) concerning the age of a per- son whom he has seen; (2) on matters of color, size, weight, quantity, value, distance, speed, time, etc.; (3) relative to the identity of persons, places or things; (4) whether a person appeared angry, sad, nervous, excited, sick, in poor health, well, ill, attached to another, sober or intoxicated; (5) whether a person appeared to be suffering pain, showed fear, manifested grief, was formerly in good health, was rational or irrational, sane or in- sane, had failed mentally in a given time, looked bad, was of intemperate habits, acted strangely or in a childish manner, was " short" in answering questions, eccentric, or of a fickle mind; (6) whether the mind of a person was clear, etc. Such evidence has been said to be competent from neces- sity, on the same ground as the testimony of an expert, as being the only method of proving cer- tain facts essential to the proper administration of justice ; nor is it a mere opinion which is thus given by the witness, but a conclusion of fact to which his judgment, observation and common knowledge have led him, in regard to a subject- matter which requires no special learning or ex- perience, and which is within the knowledge of men in general. 5 Weight of Such Opinions. — The confidence to which such opinion is entitled depends upon the 5 Com. v. Sturtevant, 117 Mass., 122. ADMINISTEATIVE LAW 157 character of the examination made by the wit- ness, the nature of the subject-matter to which it refers, and the intelligence and good faith of the witness. 6 Eeasons foe Admission. — These exceptions to the general rule that ordinary witnesses can tes- tify only to facts which come to their knowledge through some of the senses, are made to promote justice and are founded upon necessity. Circum- stances there are in which, because of the im- perfection and limitations of language and the instability of mental impressions, the witness can express a condition or state of facts more clearly by giving his inferences at the time, from the im- pressions made on his mind, than by attempting a detailed enumeration of those impressions. Often facts of personal observation, especially of con- versations, are remembered only by the mental conclusions which they produce at the time. Thus, it may be difficult or even impossible, to describe in detail a person's condition or conduct at a given time, when the observer may disclose the key to the whole matter by merely stating his own im- pression at the time ; such as, that the person was angry, or excited, or intoxicated, or sad, etc. Test of Admissibility. — Whenever the condi- tion sought to be established is such that it cannot be reproduced and made palpable in the concrete to the court or jury, or when language is inade- e Hopt. v. Utah, 120 U. S., 437. 158 DENTAL JURISPRUDENCE quate to make the court or jury see it and know it as the witness saw it and knew it, then the or- dinary witness may describe the condition by its effect upon his own mind at the time, even though such method savors of an opinion. 7 Subject-matter of Expert Testimony.— Limita- tions. — The test of the admissibility of expert testimony is, — Is the question upon which the evi- dence is offered, one of science, skill or special experience or occupation? The subject must be one which the courts recognize, as a matter of judicial notice, as being a matter of special study, experience or occupation, either for professional or other purposes, and it must relate to some particular department of human knowledge or activity. The subjects to which this kind of evi- dence is applicable are not necessarily confined to classified and specific professions. It is appli- cable wherever particular skill, experience and judgment, applied to particular subjects, are re- quired to explain results or trace them to their causes, and in which, as a matter of business, recreation or study, there are persons who are specially informed. Technical Information. — The opinion of a wit- ness is not evidence for the jury or court, except where the question is one of science or skill, or has reference to some subject upon which the court or jury is supposed not to have the same de- 7Whittier v. Franklin, 46 N. H., 23; Knoll v. State, 55 Wis., 249. ADMINISTRATIVE LAW 159 gree or means of knowledge as the witness. The general rule as to the admissibility of expert evi- dence is that persons having technical and peculiar knowledge on certain subjects are allowed to give their opinions when the question involved is such that the jurors are incompetent to draw their con- clusions from the facts without the aid of such evidence. Common Knowledge. — A witness is not per- mitted to give his opinion as an expert in refer- ence to a matter which does not involve a question of science, skill or occupation ; and where the mat- ter inquired about requires no special knowledge, skill or experience and may be determined by the jury upon a sufficient description of the facts, it is not proper to receive the testimony of experts. Thus, the question of whether the smoothness and slipperiness of glass make it unsuitable for side- walk purposes, is not a question of science or skill, and the opinions of architects or other spe- cialists are not admissible. It is a subject equally within the knowledge of all men. The opinions of witnesses should not be received as evidence when all the facts upon which said opinions are founded can be ascertained and made intelligible to the court or jury, and where the information may be said to be equally within the experience of all men irrespective of study or occupation. 8 When the subject of a proposed inquiry is a 8 Chicago v. McGiven, 78 111., 347, 349. 160 DENTAL JURISPRUDENCE matter of common observation upon which the ordinary mind is capable of forming a judgment, or is one which the law does not recognize as being made a matter of particular study or occu- pation, an expert may not express an opinion or draw conclusions either from facts testified to by him or in response to hypothetical ques- tions. Expert Confined to Special Subject. — When testifying he must be strictly confined to the limits of the special knowledge of his profession or occu- pation. 9 In a prosecution for practicing dentistry with- out a license, the question as to whether the doing of certain specified acts amounts to the practice of dentistry is not a matter of expert testimony. 10 Expert Witnesses. — Definition. — An expert witness is one who has made the subject upon which he gives his opinion, a matter of particular study, practice or observation, and who has a particular knowledge on the subject which must be recognized in law as a distinct department of human knowledge and endeavor. An expert is one who, in regard to a particular subject or de- partment of human activity, possesses knowledge not possessed by ordinary persons. 11 An expert is a person instructed by a specially acquired in- formation, knowledge and experience upon sub- 9 Page v. Parker, 40 N. H., 47. 10 People v. Lehr, 196 111., 361. uSiebert v. People, 145 111., 571; Jones v. Tucker, 41 N. H., 546. ADMINISTRATIVE LAW 161 jects presumably not within the range of ordinary intelligence and observation. 12 Qualifications. — A mere casual observation, or desultory and superficial reading on a subject will not constitute one an expert therein; while, on the other hand, it is not required that the party offered as an expert shall possess the highest de- gree of knowledge and skill in the matter about which he assumes to express an opinion, nor that he should, at the time he testifies, be actively en- gaged in the occupation or profession within whose province the subject-matter of his testimony is comprised. 13 Preliminary Inquiry as to Qualification. — Whether a person who has been called as an ex- pert has the requisite qualifications in the partic- ular subject-matter involved to enable him to tes- tify as an expert, is a preliminary question to be determined by the court, and the decision of the court is conclusive, unless it appears from the evi- dence to be clearly erroneous or to have been founded upon some error in law. 14 After a wit- ness has been permitted to testify as an expert, the weight and effect of his testimony is a question exclusively for the jury, and is entitled to such weight and consideration as his skill and expe- rience in the special subject of inquiry justify. 15 12 Page v. Parker, 40 N. H., 47, 59; Hyde v. Wo'olfolk, 1 la., 167. 13 Mason v. Puller, 45 Vt., 29 ; Welde v. Welde, 2 Lee Ecc, 578. 14 Parkins v. Stickney, 132 Mass., 218; Congress Co. v. Edgar, 99 U. S., 657. 15 Davis v. State, 35 Ind., 496; U. S. v. Prendergast, 32 Fed., 198. 162 DENTAL JURISPRUDENCE In determining the weight to be given to the tes- timony of an expert, it is proper for the jury to take into consideration the fact that he was spe- cially compensated by the party in whose favor he testified. 16 Conduct. — The expert witness should endeavor to make his statements clear and intelligible to the ordinary listener. He must not forget that he is called upon to testify because the subject is not within the field of knowledge of the person to whom his testimony is directed and for whose benefit he is called as a witness. He should avoid as much as possible the use of technical terms and language suggestive of pedantry, subterfuge or display. He should shun even the suggestion of advertising himself or parading his accomplish- ments and speak with becoming modesty on all matters pertaining to his qualifications, expe- rience and achievements. . Able testimony may lose its convincing force by being preceded and intro- duced by a spirit of braggadocio. It is important to the expert to be familiar with rules and prac- tices of courts relating to the examination of wit- nesses, as it may save conflict with the attor- neys and, possibly, even reprimand from the judge. Basis of Opinion. — An expert may base his opin- ion upon information (a) obtained by his own 16 Ware v. Starkey, 80 Va., 204. ADMINISTEATIVE LAW 163 examination of the party and testified to by "him in court, or (b) gained by him from testimony which he heard in the case in court, or (c) as- sumed in a hypothetical question propounded to him. Subjects of Inquiry. — In an action for malprac- tice against a dentist, on a charge of negligence, a practitioner in the profession, or one who is skilled therein, may give his opinion, if material, as to whether the treatment complained of was proper and in accordance with the usual and cus- tomary practice, under the circumstances, and, if not, wherein it was not ; whether the given op- eration was skillfully performed ; whether the de- fendant, whom he has seen operate, is a skillful operator; whether certain work shows fair and skillful workmanship; whether plates reasonably fit the mouth; whether a certain detached tooth was properly seated in the jaw at the time of its extraction, or if the gums had receded therefrom to any considerable extent; whether it had been scraped or treated by an acid since its removal from the jaw; whether a given method of extrac- tion was proper and approved by the profession ; whether a certain specified condition could have resulted from a specified treatment, or course of treatment; whether, under certain given condi- tions, certain specified methods, treatments, ap- pliances or devices were practical or approved by the profession; whether given malformations can 164 DENTAL JURISPRUDENCE be corrected; whether certain conditions are cur- able ; whether a certain infection could have been induced, at a given time or in a specified manner; and, in fact, on any subject of inquiry at issue coming within the range of his special skill and knowledge. His opinion may be based on facts assumed in a hypothetical question, or on the stated results of his own investigation. In a proper case a dentist may testify whether the tooth was removed from a given socket exhibited or described, before or after death; whether a given tooth belonged to a given socket; as to the age of a skeleton from the teeth and jaws; as to the identity of a jaw or part thereof with one of which he took a cast; as to the proper method of treating a given condition; as to the migration of teeth in the jaw and to what extent and under what conditions ; as to the effect on teeth and jaws of removing some of the teeth ; as to the difficulty of extracting the lower wisdom tooth and when; as to the manner in which the latter tooth erupts ; as to the normal number, arrangement and char- acter of teeth; as to the ages at which different teeth appear; in fine, as to any fact which comes within the range of his special knowledge and experience as a dentist. Cross-examination of Expert. — In the direct ex- amination of an expert witness, the facts assumed in a hypothetical question should be such as are fairly within the scope or range of the testimony, ADMINISTEATIVE LAW 165 or necessarily inferable therefrom. However, upon cross-examination, any fact which, in the sound discretion of the court, is pertinent to the inquiry, whether testified to by any one or not, may be assumed in the hypothetical question with a view of testing the skill, learning or accuracy of information of the expert, or to ascertain the reasonableness or expose the falsity of the opinion he has expressed. Although a question goes be- yond the scope of the evidence it may be pro- pounded upon cross-examination if its purpose is to elicit the reason upon which the expert bases an opinion expressed by him in his examination in chief, or to ascertain the extent of his skill and learning in the particular subject upon which he assumes to be an expert. 17 While medical works are not admissible in evidence to prove the things contained in them, still where a medical expert says he bases his opinion upon what a certain text-writer says on the subject, the text may be read from on cross-examination to show the wit- ness that the author does not sustain the conten- tion of the witness. 18 Privileged Communications.— Confidential com- munications between attorney and client, priest and penitent, physician and patient, and 1 husband and wife, sometimes relate to matters which then are, or subsequently become, the subject of judi- 17 W. C. S. Ry. v. Fishman, 169 111., 196, 200. IS Bloomington v. Schrock, 110 111., 219. 166 DENTAL, JUKISPKUDENCE cial inquiry. When, by law, these communications are excluded from disclosure in evidence they are termed privileged communications. When the disclosure of such communications is forbidden by the law, it is upon grounds of public policy on the presumption that ''greater mischief would prob- ably result from requiring or permitting their admission than from wholly rejecting them." 19 At Common Law. — Under the common law this privilege extended only to attorney and client. Statutes. — The exemption has been enlarged by statutes, in most states, to include communica- tions between physician and patient, priest and communicant, and husband and wife. Provisions. — The statutes referring to physi- cians usually designate the parties, disclosures to whom shall be privileged, as "physicians and sur- geons in the practice of their profession," those "practicing physic and surgery," etc. Purposes. — The purpose of these statutes is to throw around such disclosures as the patient is required to make for the necessary information of his attending physician the cloak of secrecy; the prime object being to invite confidence in respect to ailments of a secret nature. Interpretation. — In spirit, such statutes do not usually include cases where the malady is ap- parent to every one on inspection, but in their ap- plication they are usually construed to apply to 19 I Greenleaf on Evidence, Sec. 236, ADMINISTRATIVE LAW 167 all information necessarily disclosed or discovered upon any investigation which was necessary to the proper treatment of the patient. They pro- tect with the mantle of privilege whatever, in order to enable the physician properly to prescribe, was disclosed to any of his senses and which was in any way brought to his knowledge for that pur- pose; that is to say, any information which was necessary to enable the physician to prescribe for the patient as a physician, or to perform any sur- gical operation for him as a surgeon, is privi- leged. 20 Under such statutes any information dis- closed to a physician by a patient to enable him properly to prescribe for the patient, or dis- coveries made by the physician in the course of his examination therefor, cannot be revealed on the witness stand by the physician, and the privilege usually extends to persons present during the in- terview. 21 Incidental Information. — Knowledge which was not acquired for the purpose of treatment is not usually exempt from disclosure. Thus, soon after an injury, a physician, by his own observation or the admission of the patient, discovers that the patient is under the influence of liquor, the knowl- edge of such fact is not protected from disclosure, since the disclosure was not necessary to the 20 Campau v. North, 39 Mich., 606, 609 ; Dittrich v. Detroit, 98 Mich., 245. 21 Campau v. North, 39 Mich., 606 ; Edington. v. Insurance Co., 67 N. Y., 185. 168 DENTAL JUKISPKUDENCE proper treatment of the patient, and the physician was not required to make an investigation as to intoxication in order properly to diagnose the trouble and dress the wound. Such discovery or disclosure is a mere incident to the treatment. 22 Waiver of Privilege. — The courts usually con- strue these privileges as being for the benefit of the patient and that the patient can waive the privilege if he desires; but unless he waives it, the lips of the physician are forever sealed, — "the seal of the law once fixed upon them, remains forever, unless removed by the party himself in whose favor it was there placed." In some juris- dictions the courts hold that, as it is a personal privilege, it must be claimed by the patient, other- wise the courts will enforce disclosure thereof. 23 Dentists not Included by Construction. — Where the relation is such that there is no public neces- sity for encouraging the reposing of confidence, the reason for the privilege fails and the law does not apply. If there is no justification for disclos- ing secret maladies there is no confidence to be abused. In but very few cases is there any occa- sion for a patient to make confidential disclosures to a dentist in order to enable the latter properly to treat his case; therefore there is no real pub- lic necessity in encouraging a patient to make such revelations to his dentist. For this reason, if 22 Note to Dittrich v. Detroit, 98 Mich., 245. 23 Railroad Co. v. Martin, 41 Mich., 667. ADMINISTKATIVE LAW 169 for no other, the courts have not construed the statutes barring from disclosure in court the com- munications from patient to physician and sur- geon to include the information obtained by den- tists from their patients in the course of their pro- fessional employment. 24 Code Napoleon. — It is said that the penal code of France makes it a crime for a physician to dis- close secrets of his patient revealed to him for the purpose of medical assistance, or discovered by him in the course of his investigation for that purpose: Criminal Purpose. — If communications are made to a physician for the purpose of furthering some criminal design or conspiracy, or some other vio- lation of law, they would not be privileged. 25 24 People v. De France, 104 Mich., 563. 25 Hewitt v. Prime, 21 Wend., 79. CHAPTER XIV MISCELLANEOUS SUBJECTS Contracts and Work on Sunday. — Validity. — A contract executed on Sunday is not void at com- mon law by reason of having been entered into on that day. 1 Neither does the common law prohibit ordinary labor on Sunday. 2 Statutes prohibiting the execution of contracts and the transaction of business and the performance of labor on Sunday have been held to be within the reasonable exer- cise of the police power for the protection, health and welfare of society. Statutes limited to a pro- hibition of disturbances of the peace and good order of society by labor on Sunday, do not pro- hibit ordinary business transactions. A general law prohibiting the transaction of all business and the performance of all labor on Sunday, except work of necessity and charity, is constitutional and enforcible. However, where such statutes or ordinances single out a particular occupation whose exercise does not necessarily disturb the peace and good order of society, they are regarded as class legislation and will not be enforced. 3 1 Richmond v. Moore, 107 111., 429. 2 Eden v. People, 161 111., 296. 3 Eden v. People, 161 111., 296. 170 MISCELLANEOUS SUBJECTS 171 Charity and Necessity. — The statutes of the various states prohibiting labor and the transac- tion of business on Sunday, naturally and neces- sarily except work of necessity and charity. What constitutes work of necessity and charity has often been before the courts and is not always easy to determine. The circumstances of each particular case must be taken into consideration. An act which would be considered a necessity, under one set of circumstances, might be clearly prohibited under a different set of circumstances. Necessity, within the meaning of the law, is generally con- sidered a moral and social fitness or propriety of the work or labor done under the circumstances of the particular case. 4 The necessity referred to in the statute need not be an absolutely un- avoidable physical necessity; a mere moral emer- gency which will not reasonably admit of delay is a necessity within the contemplation of such stat- utes. 5 It has been said that it is impossible to lay down any general rule as to work of necessity and charity, and also that the exigencies of human life, which demand work of necessity and charity, are so numerous and diversified by attending cir- cumstances as to defy classification. 6 Dental Services. — The usual services of a phy- sician are generally regarded as coming within 4Flagg v. Millbury, 4 Cush., 243; Johnston v. People, 31 111., 469. 5 Burns v. Moore, 76 Ala., 339, 342. 6 Johnston v. Commonwealth, 22 Pa. St., 102 ; Ungericht v. State, 119 Ind., 379. 172 DENTAL JURISPRUDENCE the exception. The work of a dentist in operating upon and relieving the pain of an ulcerated tooth, or similar service, would doubtless be regarded as work of necessity. It is probable that the ordi- nary work of preparing and filling a tooth, fitting bridges, taking impressions, and like services, where the health of the patient was not clearly in- volved, would not be considered work of neces- sity. The mere convenience of either the dentist or the patient, however emergent, would not bring such work within the exception. Eecovery for Services. — Where the statute provides a penalty for its violation, a dentist can- not recover for services rendered a patient in vio- lation of the statute. If, however, he exacts his pay beforehand, the patient would not be able to recover the same by reason of the fact that the law had been violated. Eecovery for Article. — While none of the or- dinary prosthetic work of a dentist can reasonably be considered as work of necessity, still the pa- tient cannot accept a plate made on Sunday and then refuse to pay for the same because of the violation of the statute, since, under the law, the obligation of the dentist was to furnish a completed article, and not services, therefore the patient could not be interested in the time when the work was actually done. For the same reason a pa- tient cannot refuse to accept a plate merely be- cause it was made on Sunday. MISCELLANEOUS SUBJECTS 173 Survival of Action. — In the absence of statutory provisions to the contrary, a right of action for malpractice does not survive the death of either patient or practitioner, and if suit has been brought, it abates upon the death of either. 7 This has been changed by statute in some states. Surviving Partner. — However, if a partner, who is guilty of malpractice, dies, the right of ac- tion survives against the surviving partner, whether the latter contributed to the malpractice or not. 8 Joint Actions. — Where two or more dentists are jointly guilty of malpractice, suit may be brought by the patient against all jointly, or against one, or against any number less than all, at the option of the patient, or separate actions may be brought against all, or any number less than all. 9 One dentist, however, is not liable for an injury in- flicted by another, unless they were partners or acted in concert or cooperation, and several will not be liable for the torts of one unless they con- certed or cooperated in the negligent act, or unless their combined, cooperating conduct produced the resultant injury. Where the acts of the practi- tioners are entirely distinct and separate as to aid, concert, advice, cooperation or countenance, 7Vittum v. Gilman, 48 N. H., 416; Boor v. Lowrey, 103 Ind., 468; Wolf v. Wall, 40 O. St., Ill; Lattimore v. Simmons, 13 S. & R., 183. 8 Hess v. Lowrey, 122 Ind., 225. 9 Barnes v. Means, 82 111., 378; Yeazel v. Alexander, 58 111., 254, 261; Chicago v. Babcock, 143 111., 358, 366. 174 DENTAL JUKISPRUDENCE from one to the other, there can be no joint liabil- ity and each will be liable only for his own wrong. 10 An attending physician who assists a surgeon is not jointly liable with the latter for neglect to re- move a sponge from the wound. 11 Contribution. — Where a patient sues only one practitioner, or any number less than all who are jointly guilty of malpractice, those sued cannot require the others to be made parties to the suit nor to contribute to the payment of the judg- ment. 12 Satisfaction. — In cases of this character, a pa- tient can have but one satisfaction of his damages. If, for a sufficient consideration, he releases one of the joint wrong-doers, he releases all, and, if a judgment against one is satisfied, it bars a prose- cution of the others. 13 Purchase of Peace — Agreement not to Sue. — An agreement not to sue is not considered an accord and satisfaction, does not amount to a release and, therefore, if given to one or more joint wrong- doers, for a sufficient consideration, does not bar action against other joint wrong-doers. 14 lOYeazel v. Alexander, 58 111., 254, 262. li Brown v. Bennett, 157 Mich., 654. 12 Rend v. R. R. Co., 8 111. App., 517, 525; Reed v. Peterson, 91 111.. 288, 297. 13 Vigeant v. Scully, 35 111. App., 44, 46. 14 Chicago v. Smith, 95 111. App., 335, 339. CHAPTER XV FALSE REPRESENTATIONS Trust and Confidence.— The relation of dentist and -patient necessarily imposes a degree of trust and confidence on the part of the patient and should require the utmost good faith and fair deal- ing on the part of the dentist. The law justifies a patient in relying upon the representations of his dentist as to the nature of his malady, the curability thereof, the character of treatment necessary and the ability of the dentist to accord relief. If a practitioner is required by his patient to give an unqualified opinion as a condition pre- cedent to his employment to treat the patient, he must use reasonable and ordinary skill and care, and his best judgment, and exercise good faith and the strictest honesty, eliminating all selfish consideration, in forming and expressing that opinion. In such manner only can he discharge his full legal duty in this respect. The reposing of faith and confidence by one party in another and the justification thereof in the law, are im- portant elements in an action of deceit. 1 The law does not assume to safeguard every confidence, and lClodfelter v. Hulett, 72 Ind., 137. 175 176 DENTAL JURISPRUDENCE cannot undertake to right every abuse thereof, since these elements enter into every business and social transaction. In the eyes of the law there are only two general classes of people, — (a) the legally competent, and (b) the legally incompetent. The legally competent are all put on substantially the same plane; they are treated, in the law, as though they were absolutely equal in mental abil- ity, experience and development. The man with ten talents is under no different or greater obli- gations by reason of that fact than the man with one talent. Confidential Relations. — There are certain re- lations, however, in which the law takes cogni- zance of the fact that the parties thereto are not on an equality; that one of the parties holds a dominant position; that the origin of the special relation is due to the superior knowledge and ability of the one over the other in the subject- matter involved; that a degree of special faith and confidence is essential, or at least important, to successful results from the efforts put forth in that behalf, and that the general welfare re- quires that the utmost good faith be exacted of the dominant party, and that the other party be encouraged to repose faith and confidence in the superior. These considerations have special ap- plication to the dental and medical professions. Why should the practitioner be permitted to say that his patient should not have believed him, FALSE REPRESENTATIONS 177 or that the patient should have doubted or ques- tioned his motives? Opinions. — In ordinary business transactions, the expression of an erroneous or false opinion is not considered, in law, a false representation. Thus-, opinions of quality, utility, value, capability or other generally recognized commercial attri- butes of an article are not regarded as statements of fact, within the meaning of the law. Common Law Rule. — Caveat emptor is the pre- vailing doctrine. The rule is based upon the pre- sumption that both parties to the transaction are equally competent to form an opinion ; that neither should be misled by the knowingly false or hon- estly erroneous opinions of the other, and that as the basis of the opinion is equally within the knowledge of both, neither should be deceived by the alleged mental conclusions of the other. In a great majority of business proceedings this pre- sumption is practically true, and neither party thereto is materially influenced by the opinions of his adversary. False representations, to be the basis of an action of deceit or criminal prosecu- tion, must be of a past or present existing ma- terial fact. The common law did not encourage reliance upon a mere opinion of an adversary in a business deal. Adversary is used advisedly; the common law practically forced a vendee to con- sider the vendor as an enemy. They were re- garded in the light of duelists battling for ad- 178 DENTAL JURISPRUDENCE vantage. So long as the vendor confined himself to opinions, whether of quality, utility, value, ca- pability, future usefulness, productivity, salability or other similar attributes of the article, he was not required to fix any limit to his imagination, ex- cept the credulity of the prospective buyer; but the harshness of this doctrine has been somewhat modified in modern times and the more equitable doctrine of the civil law is gradually shaping a new attitude of the courts toward the subject. 2 Confidential Relations and Special Knowl- edge. — An opinion, however, may be a sufficient basis for an action of deceit, under proper condi- tions of subject-matter and relation of parties. Introduce a confidential relation and the reason for the rule of caveat emptor ceases. Where the disparity is great, the expression of an opinion may have all the consequences, and should have all the legal responsibilities, of an assurance of a material fact. Misrepresentation by Opinion. — Where the re- lation is in its nature confidential, and the subject- matter is a profession requiring special knowl- edge and skill, and the party expressing the opin- ion is a practitioner therein, while the one to whom the opinion is conveyed is not versed in the pro- fession, the assurance of a belief may be sufficient in itself to induce and control the conduct of the 2 Hicks v. Stevens, 121 111., 186; Hedin v. Minn. Med. & Surg. Institute, 62 Minn., 146. FALSE REPRESENTATIONS 179 party to whom it is communicated, and the practi- tioner should be held to the strictest accountability for the honesty, disinterestedness and practical accuracy thereof. The patient may have no means of testing the truth of the opinion of the practi- tioner or the good faith of its utterance. Where one of the parties to a transaction possesses spe- cial learning and skill not possessed by the other on the subject with respect to which the opinion is given and which is the subject of the relation, and where the other party is justified in believing that such opinion can and ought to be an approxi- mation to the truth, and the relation is such as to justify a reliance by the one on the good faith of the other, an action of deceit may be predicated for the false or reckless statement thereof, when deception is intended and damage results in re- liance thereon. Of course, this does not mean that a practitioner cannot express an opinion ex- cept at his peril, nor communicate his belief with- out being liable for deceit, if it turns out to be wrong. We are considering only his good faith in reference thereto. He cannot use a professed opinion as a vehicle to entrap and defraud his patients. He must not pretend to have a convic- tion which he does not hold, nor make capital out of an opinion which he cannot honestly possess. 3 Fraud. — Fraud vitiates everything it touches 3 Hedin v. Minnesota Med. & Surg. Institute, 62 Minn., 146 ; Hicks v. Stevens, 121 111., 186. 180 DENTAL JURISPRUDENCE and makes voidable every contract it induces. Any deceitful practice in depriving or endeavor- ing to deprive another of property or rights by means of some artful device, trickery, chicanery, contrivance, stratagem or plan contrary to the plain rules of common honesty, is fraud. 4 Fraud may be said to consist in deception intentionally practiced upon another to induce him to part with his property or to surrender some legal right or claim, and which accomplishes the end designed. 5 Fraud which gives rise to an action of deceit exists where a person makes a false representa- tion of a material fact susceptible of knowledge, knowing it to be false, or as of his own knowl- edge, when he does not know whether it is true or false, with the intention to induce the person to whom it is made, in reliance upon it, to do or refrain from doing something to his pecuniary hurt, when such person, acting with reasonable prudence, is thereby deceived and induced to so do or refrain to his damage. 6 Motive. — There need not be a corrupt motive of gain nor a wicked motive of injury to predi- cate an action of deceit, although the former is usually present. The gist of fraudulent repre- sentations is the producing, by statement or con- duct, of a false impression upon the mind of the party to whom they are made, with the intent to 4 Mitchell v. Kintzer, 5 Pa. St., 216, 219. 5 Judd v. Weber, 55 Conn., 267, 277. 6 20 Cyc, 10. FALSE REPRESENTATIONS 181 create such false impression, and, where this re- sult is accomplished, the means by which it is consummated, whether by the expression of a be- lief or by the assertion of a fact, are not very material as a matter of justice and fair deal- ing. Fraudulent Opinion by Expert. — A charge of fraud may be based upon a knowingly false ex- pression of opinion by an expert, or upon an ex- pression by an expert of an opinion in utter dis- regard of the facts and inconsistent with the honesty and good faith of the party expressing it, where the party has, or, under the law should have, special knowledge on the subject, not pos- sessed by the other party, and where he ought to be able to approximate the truth. 7 Materiality. — It must appear that the repre- sentation of fact or opinion was material to the transaction, otherwise the court will not attempt to give relief. If a false representation be such that, had it not been made, the transaction would not have been entered into, then it is material; but if it be established or made probable that the same thing would have been done in the same way by the party complaining, if the representa- tion had not been made, it cannot be deemed ma- terial. 8 The facts that the statement or opinion 7 Hedin v. Minnesota M. & S. I., 62 Minn., 146 ; Picard v. McCormick, 11 Mich., 68; Kost v. Bender, 25 Mich., 515 (sale of oil lands) ; Powell v. Fletcher, 18 N. Y. Supp., 451 and 19 N. Y. Supp., 911 (sale of violin). 8 McAleer v. Horsey, 35 Md., 439. 182 DENTAL JURISPRUDENCE was intended to deceive, was of a character cal- culated to deceive the party to whom it was ad- dressed, and actually did deceive, are considered sufficient to establish its materiality. 9 To be ac- tionable, the representation must be as to a ma- terial fact, and susceptible of approximate knowledge. Generally speaking, if they appear to be mere matters of opinion or conjecture, they are not regarded as material. 10 Intent. — A fraudulent intent or design is nec- essary in order to predicate a right of action. "Where the statement is made or the opinion ex- pressed with knowledge of its falsity, or reck- lessly without any knowledge of its truth or falsity, and as a positive assertion calculated to convey the impression that the speaker knows or believes it to be true, a fraudulent intent will al- ways be inferred. Where the statement or opin- ion was false and material, and the party, when he made it, knew that it was false, or, not know- ing whether it was true or false, and not caring what the effect might be, made it in reckless dis- regard of the facts, and paying no heed to the injury which might ensue to the other party, a fraudulent intent will be presumed. 11 Honest Error. — An honest error of judgment is not sufficient to predicate a charge of fraud be- 9 McDonald v. Smith, 139 Mich., 211. lOHedin v. Institute, 62 Minn., 146. llHedin v. Institute, 62 Minn., 146; Kuntze v. Kennady, 147 N. Y. 124, 129. FALSE KEPKESENTATIONS 183 cause the wrongful intent is wanting. 12 Where an opinion is recklessly made, however, a fraudu- lent intent may be presumed. 13 Elements of the Tort. — The essential elements of an action of deceit brought by a patient against a practitioner for the expression of a false or er- roneous opinion are — (a) The opinion must have been communicated directly or indirectly by the practitioner to the patient ; (b) The opinion must, in fact, have been false or erroneous ; (c) The practitioner must, at the time, have known it to be false, or, not knowing its truth or falsity, he must have promulgated it under such circumstances as to show a disregard for the in- terest of the patient, and that he ought to have known the approximate truth; (d) The practitioner must have intended to de- ceive the patient; (e) The patient must not have known the falsity of the opinion; (f) The patient must have been justified, un- der the circumstances, in believing the opinion to be true ; (g) He must have believed it to be true; (h) He must have relied upon it and his con- duct must have been controlled by it ; 12 Johnson v. Belney, 9 111. App., 64. 13 Miller v. John, 208 111., 173. 184 DENTAL JUBISPKUDENCE (i) The opinion must have materially induced the conduct of the patient in his reliance there- on, and it must appear that without it his con- duct would probably have been different, but it is not necessary that it should have been the sole inducement ; (j) The patient must have been damaged by his reliance upon the representations. 14 Illustrations of the Principle. — In a certain case, the patient, who was an illiterate man, had previously been permanently injured in an acci- dent which left him a physical wreck. He con- sulted with the physician in charge of an insti- tute, as to his condition, the probability of his recovery and their ability to give him relief. The injury which he had received was a fracture at the base of the skull, and it occurred about a year before the conference with the physician. The evidence warranted the jury in finding that his injuries were incurable, and that any honest physician, having the history of the case before him, must, after a proper examination, have come to that conclusion. The evidence tended to show that after an examination the physician posi- tively assured the patient that he could be cured, and that by treatment at the institute he would be made sound and well again. Eelying upon these representations, and believing them to be true, the patient was induced to enter into a writ- 14 Hicks v. Stevens, 121 111., 186; Eaton v, Winnie, 20 Mich., 126. FALSE REPRESENTATIONS 185 ten agreement obligating himself to pay the sum of five hundred dollars for the treatment. It ap- pears from the opinion of the court that the writ- ten contract did not guarantee a cure or promise that the patient would be restored to good health, or even assure him of any relief, but merely ob- ligated the institute to give him the treatment. He paid his money, took the treatment and was not cured. After learning his real condition he brought an action against the institute and the physician to recover the fee paid, on the ground that he was induced to enter into the contract and pay his money to the defendants by means of false and fraudulent representations. To maintain his action it was incumbent on the pa- tient to prove that his malady was incurable ; that the defendants represented that he could be cured and that they would cure him ; that they knew or, if skillful and honest, should have known that such representations were false; that they were not the expression of an honest opinion based upon a proper investigation, but were either fraudulently made with knowledge of their falsity, or were uttered with a reckless or ignorant dis- regard of facts, and of the interest of the pa- tient; that the patient did not know their falsity but believed them to be true ; that in reliance there- on he entered into the contract and parted with his money; that his condition was such that an honest physician should have been able to approxi- 186 DENTAL JUEISPKUDENCE mate the truth and to have known that his malady was incurable. On the trial, before a jury, the pa- tient obtained a verdict and judgment for the $500 which he had paid, and interest thereon from the date of payment and, on appeal, the judgment was affirmed. 15 Responsibility of Practitioner for Opinion. — The honest practitioner can usually approximate the truth in his prognosis in such cases, and the patient is justified in relying upon his opinion as being substantially correct. The law must ex- act of the practitioner the utmost good faith in this respect. He dare not pretend to have an opinion which he does not hold, nor express an opinion which ordinary skill and honesty should know to be false. If the expressed opinion is con- trary to the enlightened judgment of the profes- sion at the time and place, the jury are warranted in concluding that it was deliberately false and that the practitioner knew he could not accom- plish the results stated and, therefore, that the representations and promises were made for the wrongful and deliberate purpose of depriving the patient of his money, without giving the consid- eration anticipated by the patient and promised by the practitioner. While the responsibility of practitioners is not based upon the result of their remedies, they owe their patients the highest de- gree of fairness and good faith and they must not 15 Hedin v. Institute, 62 Minn., 146. FALSE BEPRESENTATIONS 187 be guilty of any deception or indirection to the detriment of their patients. 16 Fraud in Concealment of Inability to Relieve. — Where a practitioner, knowing that he cannot cure an ailment or relieve a trouble, and conceal- ing such prognosis from the patient, persuades the latter to take or continue a course of treat- ment and, during the progress of the treatment, encourages him to believe that he is improving satisfactorily, well knowing that his assurance is false and that the patient is relying upon his state- ments, he is guilty of such fraud as will defeat a recovery for his services in that behalf. 17 If he finds that he cannot cure, he must so advise his patient, and any concealment of his ignorance of the patient's disease, or of his inability to af- ford relief, while at the same time encouraging the patient to continue the services, is a gross fraud on the part of the practitioner and ought to defeat his right of recovery for such services. 18 In the Logan case a physician brought an action to recover his fee for treatments and the patient defended on the ground of malpractice, charging that the physician knew he was doing the patient no good, while pretending to the patient that he was improving. The physician was practicing as a specialist for diseases of the nose, throat and ear. Covering a period of nine months he had 16 Logan v. Field, 75 Mo. App., 594, 601. 17 Logan v. Field, 75 Mo. App., 594. 18 Chase v. Heaney, 70 111., 268. 188 DENTAL JURISPKUDENCE previously given the patient sixty-four treatments for his malady, which was an affection of the nose, and had received his pay therefor. It ap- pears that the treatment did not do the patient any good. Later, he returned for treatment but told the physician he could not take the same un- less he could be cured, and the physician said that he could not tell him at that time, but en- couraged him to renew the treatments, which was done. During the second course of treatment the physician frequently told the patient his nose was getting along beautifully. In fact, however, he was not improving and the physician subse- quently admitted such fact and said that an op- eration would be necessary in order to effect a cure or afford relief. Apparently, the patient re- fused to submit to an operation. On refusal of the patient to pay for the treatment, the physi- cian brought suit for his fee and the patient charged malpractice, in that he had received no benefit and that the physician knew, or ought to have known, that he could not help the patient. The case went to the appellate court because of alleged error in the refusal of certain instructions asked by the patient. Practitioner Chargeable with Knowledge. — It was considered by the court that if the practi- tioner, by the exercise of that degree of skill and care which the law exacts of him might and ought to have reasonably discovered that the disease of FALSE REPRESENTATIONS 189 the patient was incurable, or that it was a case that would not yield to the usual mode of treat- ment, or that it was probable that the patient would not be benefited by his treatment, and yet failed to make such discovery, or, if he made such discovery and failed to advise the patient thereof, he was guilty of negligence and bad faith. It was his duty to act in the utmost good faith towards the patient, and if he knew that he could not accomplish a cure, or that the treatment adopted by him would probably not be of any substantial benefit, it was his duty to advise the patient to that effect, and a failure to disclose such fact to the patient was a breach of his duty. If the patient in fact received no benefit from the treatment sued for, and this result was due to the lack of ordinary professional skill and care of the practitioner, or was because of his failure to exercise such skill and care to discover or treat the case, there could be no right on his part to recover from the patient for his services. Even though the practitioner at the inception of the treatment did not know that his method would be effective, he might be justified in undertaking the case, still, if, during the progress of the treat- ment, he discovered that he could do the patient no good, or, by the exercise of the care and skill required of him, he could have discovered such fact, but did not, or, if, having discovered it, he concealed the same from the patient and encour- 190 DENTAL JURISPRUDENCE aged him to continue the treatment and accept the services, then unquestionably he ought not to recover any compensation therefor, after the dis- covery that his treatment would be ineffectual, or after he should have discovered its want of ef- ficacy by the exercise of reasonable skill and care. Reason for the Rule. — We are readily convinced where we want to believe. The afflicted are easily deceived. With reference to their ailments they grasp at phantoms, pursue the will-o'-the-wisp and cling to an offer of relief with the tenacity of a delusion. Money has little significance ex- cept as a means to a restoration to health. The invalid is readily persuaded to spend his sub- stance for remedies which do him no good. Treatment like religion is taken on faith, and, once he is convinced, he becomes the dupe of the most arrant impostor. In any event he can know the value of the treatment only by results and in the meantime his money is being wasted. The causes which lead to health and disease are often obscure and elude even the trained mind of the honest and faithful practitioner. How easy, therefore, for the dishonest practitioner to persuade his victim to continue treatments, until his substance is squandered and he is impoverished. The dishon- est practitioner is the meanest of confidence men. The field of opportunity is great and, sorry com- mentary though it be, it must be admitted that the opportunity has been well improved. FALSE REPRESENTATIONS 191 It is a fraud for a practitioner to pretend, to the detriment of his patient, that he can cure or alleviate a disease when he knows he cannot; or that his patient is improving, when he knows or ought to know that the trouble is not being re- lieved; or that he understands the nature of the malady, when, in fact, he is ignorant thereof. In all these cases, the law should charge knowledge, where the practitioner with the application of or- dinary skill and care, and the exercise of good judgment, ought to have known. If he finds he cannot help his patient he must advise him of that fact. 19 He owes this duty of informing his pa- tient for two reasons, (a) that the patient may determine whether he wants to continue the serv- ices, and (b) that the patient may seek relief else- where, if he desires. Case Explained. — In the Hedin case, the court uses the following language : "Considering the circumstances and the rela- tion of the parties there was something more in defendants' statements than the mere expression of an opinion upon a matter of conjecture and uncertainty. It amounted to a representation that plaintiff's physical condition was such as to insure a complete recovery. The doctor, espe- cially trained in the art of healing, having su- perior learning and knowledge, assured plaintiff that he could be restored to health. . . . The 19 Chase v. Heaney, 70 111., 268. 192 DENTAL JURISPRUDENCE doctor with his skill and ability should be able to approximate the truth when giving his opin- ion as to what can be done with injuries of one year's standing, and he should always be able to speak with certainty before he undertakes to as- sert positively that a cure can be effected. If he cannot speak with certainty, let him express doubt. If he speaks without any knowledge of the truth or falsity of a statement that he can cure, or does not believe the statement to be true, or if he has no knowledge of the truth or falsity of such a statement, but represents it as true of his own knowledge, it is to be inferred that he intended to deceive and, deception being designed in either case, and injury having followed from reliance upon the statements, an action for de- ceit will lie. " 20 False Advertisements. — False advertisements in newspapers or by circulars, intended for the public, and soliciting patronage, when acted upon by a party to his damage, may be grounds for an action of deceit. 21 The advertiser need not know that the patient saw the advertisement and has acted upon the information obtained therefrom, and he need not have made any personal repre- sentations to the patient. As to Third Party. — False statements as to the curability of a malady, method of treatment, 20 Hedin v. Minnesota Medical & Surgical Institute, 62 Minn., 64 N. W., 158. 21 Warfield v. Clark, 118 la., 69. FALSE BEPKESENTATIONS 193 and the ability of a third party to cure the same, when made with intent to defraud and when acted upon to his damage by a patient, in good faith believing them to be true, may be sufficient to predicate an action of deceit against the party making them, by the party thereby defrauded. 22 None of the essential elements of fraud need be established to a mathematical certainty; in fact such a thing as mathematical certainty cannot ex- ist in the enforcement of the law. All that courts and juries usually have to act upon is proof es- tablishing belief to a moral certainty, and moral certainty always admits the possibility of error. 23 Remedies. — Where a patient has been de- frauded by the false and fraudulent representa- tions, opinions and pretenses of a practitioner, into parting with his money for treatment which inevitably can do him no material good, he may, upon discovery of the fraud, bring an action and recover the money he has paid, and any other actual damage he has sustained. On the other hand, if he has made no payment, but is sued for a fee for the treatment, whether the action be based on a contract induced by the fraud or upon an implied agreement to pay for the services, he may urge the deceit as a defense and, if he es- tablishes the same, he will defeat the claim as- serted against him and, on proper pleadings, may 22 Hedin v. Institute, 62 Minn., 146; Kenner v. Hardin, 85 111., 264. 23 Brown v. the State, Okl., ; 132 Pac, 359. 194 DENTAL JURISPRUDENCE even recover judgment for any actual damages he may have sustained. Damages. — The treatment may not have re- sulted in any actual damage to the patient, and he may have suffered no loss, except the money or other consideration with which he parted and, in that event, his recovery in an action of deceit would be limited to the amount of that consider- ation. If he parted with money he would be further entitled, in some states, to interest thereon from the date of payment to the time of the judgment. 24 If he parted with property, he can recover its fair cash value as of the date of delivery to the practitioner and, in some states, in addition thereto, he may recover inter- est thereon from the date of such delivery to the date of the judgment. 24 Hauk v. Brownell, 120 111., 161. CHAPTEE XVI CONTRACTS IN RESTRAINT OF TRADE Not Favored in Law. — Contracts in restraint of trade, industry, employment or personal activ- ity are not favored in law because they are con- sidered as being- against public policy. The law will not permit any one to restrain a person from doing what the public welfare and his own inter- est requires that he should do. 1 Where the re- straint is not general, but partial and reasonable, and founded upon good consideration, such con- tracts are valid and enforcible. 2 Probably the reports of every state in the Union contain ad- judicated cases in which some professional man sold the good will of his practice for a consid- eration, and agreed not to engage in the prac- tice of his profession within a certain distance of his former location. When the inhibition has been reasonably limited as to space, it has been uniformly enforced. 3 Specific Performance. — Courts of equity will 1 Homer v. Ashford, 3 Bing., 322. 2 Hedge v. Lowe, 47 la., 137; Boutelle v. Smith, 116 Mass., Ill; Fairbank v. Leavy, 40 Wis., 637; Linn v. Sigsbee, 67 111., 75; Arnold v. Krutzer, 87 la., 214. 3 Dwight v. Hamilton, 113 Mass., 175 ; Cook v. Johnson, 47 Conn., 175 ; Linn v. Sigsbee, 67 111., 75; Niles v. Fenn, 33 N. Y. Supp., 857; Horner v. Graves, 7 Bing., 735; Butler v. Burleson, 16 Vt., 176. 195 196 DENTAL JURISPRUDENCE enforce specific performance of such negative agreements by restraining a breach thereof by injunction, prohibiting the covenantor from prac- ticing. The injunctional relief is based upon the theory that the covenantee does not have a com- plete and adequate remedy at law, since the lat- ter action is for damages only and in which he can recover only what he can prove. The evi- dence to establish damages might not be avail- able, and, ordinarily, would be purely specula- tive. 4 By all means such contracts should be in writing and the restriction should not be greater than absolutely necessary, reasonably to protect the vendee and insure him that he gets what he contracted for. It is advisable to incor- porate a limitation as to time. While the latter limitation is not indispensable, it may become im- portant if the limitation as to space might other- wise appear unreasonable. 5 Reasonable Restriction. — Since what is a rea- sonable restriction depends upon the peculiar cir- cumstances of each case, no general rule can be given. The object of the provision in the cove- nant is the protection of the covenantee by secur- ing to him the benefit of something which the covenantor might otherwise be able to control. Still, the covenant may be enforced after the 4 Hubbard v. Miller, 27 Mich., 15; Doty v. Martin, 32 Mich., 462; Parkinson's Appeal, 78 Pa. St., 196; Ellis v. Jones, 56 Ga., 504. 5 Ocean Steamer Navigation Co. v. Winsor, 20 Wall., 64; Feckelstein Bros. Co. v. Feckelstein, 76 N. J. L., 613. See 24 L. R. A., 913. CONTRACTS IN EESTEAINT OF TRADE 197 death of the covenantee where the agreement ran to him and his assigns. Agreement Not to Practice.— Where a dentist sold his furniture, fixtures and good will for a consideration, and bound himself not to practice dentistry within a radius of ten miles of the vil- lage in which the office was located, and after- wards violated his covenant by attempting to en- gage in the practice, he was restrained from prac- ticing within ten miles from the center of the village. 6 An agreement by a dentist ancillary to the sale of his practice and good will, for a con- sideration, not to practice dentistry within cer- tain specified reasonable limits of a city, is valid and will be enforced ; 7 but an agreement for a consideration not to practice as a dental surgeon within one hundred miles of a specified city was considered unreasonable and void. The court will not attempt to make a new contract for the par- ties by fixing a reasonable limit within which it will enforce the covenant, though such reasonable limitation can readily be determined. The court will enforce or annul the contract as made, but will not undertake to make a new contract for the parties. 8 Where a physician, for a considera- tion, agreed not to practice medicine in the vil- lage or vicinity for at least the term of five years, on attempting to violate the covenant he was re- 6 Cook v. Johnson, 47 Conn., 175. 7 Niles v. Fenn, 33 N. Y. Supp., 857. 8 Horner v. Graves, 7 Bing., 734. 198 DENTAL JURISPRUDENCE strained from practicing within ten miles of the village limits. 9 It is advisable to require the ven- dor to agree not to engage in the practice in the vicinity, nor enter the employ of any one there engaged in the practice, and the promise should run to the promisee and his assigns. Injunctions. — While courts of equity will re- strain parties from affirmative acts in violation of their covenants, they will not usually enter mandatory injunctions which will require per- formance of acts on the part of the covenantor. 10 Thus, where an actress agrees to sing at a cer- tain theatre and covenants not to engage with a rival house, the courts will not require her to ap- pear as promised but they will restrain her from warbling at a rival theatre in violation of her covenant. The reason for refusing the affirma- tive relief is because courts will not enter decrees where they cannot enforce substantial compli- ance therewith. Imagine a court making a prima donna sing! n In order to be entitled to relief it is not nec- essary that the covenantee prove that the consid- eration was adequate, or that the covenantor is insolvent, or that the damage is irreparable. 12 9 Timnierman v. Dever, 52 Mich., 34. 10 Wollensak v. Briggs, 20 111. App., 50; Blanchard v. R. R. Co., 31 Mich., 43. n Lumley v. Wagner, 1 DeG., M. & G., 604; Webster v. Dillon, 3 Jur. N. S., 432; M. E. Co. v. Ward, 9 N. Y. Supp., 779; 22 Cyc, 857. 12 Ryan v. Hamilton, 205 111., 191; Gordon v. Mansfield, 84 Mo. App. ; 367; Beatty v. Coble, 142 Ind., 329; McCurry v. Gibson, 108 Ala., 451; 22 Cyc, 869. CHAPTER XVII STATUTES OF LIMITATIONS Policy of the Law. — It is the policy of the law to discourage the litigation of stale matters. Such policy was originally adopted to discourage perjury by trying issues when the facts were fresh in the memory of the witnesses and the falsity of testimony could more readily be disproved. Statutes of limitation are universally in effect whereby the time within which actions may be brought, is fixed according to sundry classifica- tions or arbitrary designations. When Cause Accrues. — The time within which a suit for malpractice may be brought varies from one year in some states to two years in other states, counting from the time the cause of ac- tion accrued. The question of when a cause of action accrues is often difficult to determine, and has led to innumerable interpretations by the courts. When a cause of action accrues, the statute is said to begin to run. In malpractice cases, as a general proposition, the action accrues at the time the services were rendered. 1 Ordi- narily the statute of limitations begins to run at 1 15 L. R. A., 161. 199 200 DENTAL JURISPRUDENCE the time the services complained of were ren- dered. Where the negligence and unskillfulness of a surgeon in treating a fractured arm were the gist of the action, the statute begins to run at the time of the setting of the arm, where the facts showed that the wrongful setting was the real and substantial cause of complaint. 2 It is the breach of duty that constitutes the ground of complaint and causes the action to accrue, and not knowledge by the plaintiff of the fact of the wrong evidenced by the resulting injury. 3 Malpractice Cases. — As to actions for malprac- tice it is generally held that the statute begins to run at the time the injury is inflicted, although the results may not be fully developed until long after. 4 Malpractice in the delivery of a woman, whereby the child is injured, dates from the time of the delivery, although the serious consequences of the negligence are not apparent for several years thereafter. 5 Diligence. — It is not the policy of the law to refuse redress to an injured party who has a just cause of complaint. Diligence in enforcing remedies is the purpose of the statutes under consideration. A party must not sleep on his rights. Seasonable promptness in appealing for redress is encouraged, — demanded. However, a 2 Coady v. Reins, 1 Mont., 424. 3 Frounce v. Nichols, 22 Ohio C. C, 539. 4 Fadden v. Satterlee, 43 Fed., 568. 5 Miller v. Ryerson, 22 Ont., 369. STATUTES OF LIMITATIONS 201 party cannot be said to sleep on his rights be- fore he knows that he has suffered injury at the hands of another. Generally, in matters of mal- practice the time when the action accrues is al- ways self-evident to the patient and others, as there can be no mistaking exactly when the wrong- was done and the injury inflicted. The presence of the injury is a continual reminder of the wrong- ful conduct. But cases there are which are not free from doubt and uncertainty. Take the case of a course of treatment by a physician or den- tist which was clearly wrong from the beginning and resulted in injury to the patient. Should the statute begin to run with the first treatment or at the termination of the relation ? Is not the wrong a continuing one? Is there not a breach of duty at the last as well as at the first, or at any inter- vening visit? So long as the improper treatment continues there is a continuing breach of the duty which the practitioner owes to his patient. Specified Services. — Where there is an agree- ment for certain specified services, covering a period of time, the statute should not begin to run until the services have been completed, or the re- lation terminated in some other manner. Latent Injuries. — Explanation. — General laws cannot cover every possible contingency. The statutes under discussion presume that the party wronged knows of his injury at the time of its infliction. In most cases of malpractice this is 202 DENTAL JURISPRUDENCE not a violent presumption. The man with a de- formity occasioned by an improper setting of the parts by the surgeon, is continually reminded of the wrong which was done him, and of the breach of duty by his surgeon. Cases there are, however, where the injury is inflicted and the patient does not know, and from the very nature of things cannot know, he has been wronged. To illustrate: Take the case where a dentist care- lessly breaks the end of his brooch in the root of a tooth, makes no reasonable effort to remove it, and carelessly closes up the cavity without advis- ing the patient of the situation. How is the pa- tient to know the facts until after trouble arises? The law is not intended to protect the wrongdoer who successfully covers up his misdeeds, nor the party whose negligence of omission is concealed by the nature of his dereliction. The patient in whose abdomen an operating surgeon has left a sponge, absorbent cotton, a pair of scissors or other foreign substance, may be ignorant of the fact until years after when, driven by excruciating pain to undergo another operation, the presence of the intruder is disclosed. A Continuing "Wrong. — Such cases are in real- ity continuing breaches of the obligation which the operator owes to his patient. If the surgeon knew of the presence of the foreign body and purposely, with or without malice but without suf- ficient reason, permitted it to remain, his con- STATUTES OF LIMITATIONS 203 duct in that respect would amount to an assault. If lie did it through negligence, the law would charge him with knowledge, for he should have known, and the legal consequence as to his liabil- ity should be the same. In either alternative the act amounts to a continuing assault, should be so regarded by the courts, and the statute should not begin to run until the discovery of the fact by the patient, or until, in the exercise of reason- able care and due diligence, under the circum- stances, the patient should have discovered his condition. If the object is removed by the offend- ing surgeon, the statute should not begin to run until such removal and the disclosure of such fact by the surgeon to the patient. A Continuing Obligation. — Where a physician operated upon a patient for what he pronounced to be appendicitis, and neglected to remove from her abdominal cavity a sponge which he had placed therein, in connection with the operation, and this condition continued during his entire pro- fessional relation to the case, it was held that the statute of limitations did not commence to run against the right to sue and recover on ac- count of want of skill, care and attention, until the case had been abandoned or the professional relation otherwise terminated. There was an agreed consideration in this case for the opera- tion itself, and also for such treatment, skill and care as might be necessary thereafter, and the 204 DENTAL JURISPRUDENCE contract was regarded as an entirety. The obli- gation on the part of the physician to use due care and diligence, to the end that recovery might be had, existed, therefore, as long as the relation of physician and patient continued. "It was a con- stant and daily obligation to use ordinary skill and care and if, by omission or negligence he had left a foreign substance within the walls of the incision at the time of the operation, it behooved him to afford timely relief. Neglect of this duty, imposed by the continuance of obligation, was a continuous and daily breach of the same and, as the facts show, caused continuous increasing daily and uninterrupted injury." It will be ob- served that in this case there were two distinct grounds on which to base complaint against the surgeon: First, for negligently permitting the sponge to remain in the cavity when closing the incision, and, Second, negligently allowing it to remain there from day to day until he dismissed his patient from his attention. The neglect of the surgeon was inherent in the operation, and also in the subsequent treatment? In the case cited, the court appears to have per- mitted a recovery for the entire injury suffered, though part of the injury appears to have been inflicted beyond the period when the statute of limitations began to run. Minors. — The statutes usually except minors, 6 Gillette v. Tucker, 67 Ohio St., 106. STATUTES OF LIMITATION'S 205 insane persons and others under disability, and give such persons a certain period after the re- moval of the disability in which to begin suit, so, in case of malpractice on a minor, the possibility of litigation is not destroyed until a year or more after the patient attains his majority. INDEX INDEX Absorbent gauze cases, 56 Acceptance, 137 Accident, 37 Act, civil rights, 41 forbidden, 77 independent, 47 Action, survival of, 173 joint, 173 Advertisements, false, 192 Affirmation, 155 Age from teeth, 58 Agreement : compensation, 88 to 102 operation, 75 not to sue, 174 special, 96 Analysis of subject, 1 Anesthetic, 62 Administer, right to, 67 definition, 62 effects, 64 kinds, 62 liabilities, 63 rape, 65 responsibilities, 64 testimony, 65 Artificial teeth, necessaries, 98 B Bad character, not material to fee, 96 Best judgment, 21 Boards of examiners, 108 Brooch, 55 Burden of proof, 45 Business relations, 129 acceptance, 137 delivery, 129 payment, 135 C Care, 18 209 210 INDEX Cases on fraud, 184 Chastity in rape cases, 67 Civil rights acts, 41 dentists not included, 42 social relations, 42 professional relations, 42 Compensation, 88 to 102 agency of minor, 100 agreement for, 88 agreement not necessary, 88, 91 benefit to patient, 89 care of practitioner, 92 charges by others, 95 charge for similar case, 92 detriment to dentist, 89 family expense, 99 fault to dentist, 90 guaranty of third person, 97, 146 history, 88 license presumed, 97 malpractice, 101 minor, 101 mother liable, 101 necessaries, 97 no agreement, 88 no relief, 92 opinions, 95 parent and child, 100 pecuniary circumstances, 96 professional standing, 93 proper treatment, 90 remedies disclosed, 93 special agreement, 96 standing of dentist, 96 success not essential, 92 treatment, frequency, 92 unlicensed dentist, 97 value, a question of fact, 91 visits, number of, 92 Confidence, 175 Confidential relation, 2, 176 Consent to operation, 69 agreed operation, 75 authority to practitioner, 83 contract, 83 damages, 86 departure from agreed operation, 75 doctrine stated, 83 duty of practitioner, 82 emergency, 72 extent of consent, 73 implied, when, 69 INDEX 211 implied contract, 79 methods, 72 minors, 73 motive, 69 necessary, 72 patient determines operation, 74 practitioner's authority, 82 prohibited act, 77 provisions of contract, 83 right of patient, 82 rule stated, 83 scope of consent, 70 "welfare of patient, 75 whose, 73 Consideration, 125 to 127 equivalence, 126 benefit to promisor, 127 detriment to promisee, 127 promise for promise, 127 Contract, 119 to 128 benefit to promisor, 127 consideration, 125 constitutional right, 128 delivery, 123 detriment to promisee, 127 equivalence, 126 express, 120 implied, 121 injunction, 198 parties, 124 promise for promise, 127 rescission, 140 restraint of trade, 195 right to contract, 128 signing written contract, 127 specific performance, 195 Contract in restraint of trade, 195 Contractual relation, 119 Contribution, 174 Contributory negligence, 32 definition, 32 illustrations of the rule, 33 j reason for the rule, 33 Courts, 151 Cross-examination, 146, 154 Cure, failure to, 34, 92 or no pay, 97 death, 49 212 INDEX false representations, 94 malpractice, 45 unauthorized operation, 86 Death from malpractice, 48 Default in delivery, 136 Defects, 140 Definitions : accident, 37 care, 18 contract, 120 dentistry, 5 evidence, 154 fraud, 179, 180 malpractice, 26 negligence, 27 presumption, 51 Delivery, 129 to 135 Dentist, a physician, 4 Dentition, 58 to 61 age by teeth, 58 development, 58 identification, 60 Departure from agreed operation, 75 Development of law, 1 diagnosis, 43 E Effect of signing contract, 127 Emergency, operation, 72 Equivalence, 126 Examiners, boards of, 108 Exhibiting injury to jury, 37 Experimentation, 29 Expert testimony: definition, 160 subject matter of, 158 subjects of inquiry, 163 Expert witness, 160 cross-examination, 164 definition, 160 qualifications, 161 Evidence, 154 to 165 definition, 154 opinion, 154 testimony, 155 Failure to relieve, 34 Family expense, 99 False representations, 175 to 194 INDEX 213 advertisements, 192 cases in, 184 caveat emptor, 177 confidential relations, 176 damages, 194 elements of the tort, 183 fee, 88 to 102 fee, services, liability, 39 fraud, 179 frauds, statute of, 143 intent, 182 knowledge, 178, 188 materiality, 181 motive, 180 opinions 177, 178 past fact, 177 reason for the rule, 190 remedies, 193 skill, 192 third party, by, 192 trust, 175 G Gauze, surgical operation, 56 Goods, wares, etc., 143 Gratuitous services, liability, 39 Guaranty, 97, 146 Guarantor, 35 Hearing to revoke license, 111 Hearsay evidence, 153 Ignorance, 26 Immoral conduct, license, 114 1 Improper treatment, 26 Infection, 56 Injunction, 198 Injury, 26, 37 Intoxication, 17 Jaw, broken, 56 Joint tort feasor, 173 contribution, 174 purchase of peace, 174 satisfaction, 174 survival of action, 173 Judgment, 20 application, 20 214 INDEX best, 21 correct, 21 different courses, 22 latitude of discretion, 21 no guaranty of correctness, 21 rule, 21 Jurisdiction, 151 Jurisprudence, 5 Jury trial in revocation of license, 118 Knowledge, see skill. Latent, injury, statute of limitations, 201 Law, development of, 1 Liability for independent act, 47 License, 103 to 118 boards, 108 common law rights, 103 fraud, 117 immoral conduct, 114 jury trial, 118 power of state, 104, 107 public welfare, 103 requirements for, 105 restrictions, 106 revocation, 110 statutes construed liberally, 109 unreasonable requirements, 105 vested rights, 110 M Malpractice, 26 accident and negligence, 37 agreement excusing, 36 anesthetic, 47 assistance, 33 assistants, 48 burden of proof, 45 carelessness, 28 causes, more than one, 56, 57 civil rights acts, 41 contribution, 174 contributory negligence, 32 criminal liability, 49 damages, 45 death from, 48 definition, 26 INDEX 215 diagnosis, 43 established mode of treatment, 29 excused, 28 exhibiting injury, 37 experimentation, 29 failure to cure, 34 good faith, 27 gratuitous services, 39 illustrations of rule, 33 improper treatment and injury, 26 independent treatment, 34 independent acts, 47 infection, 46 intoxication, 17 law, a question of, 30 matron, 48 mistake in diagnosis, 47 negligence, 27 nurses, 28 partners, 47 patient, negligence of, 31 preponderance of evidence, 45 presumptions from injury, 11 refusal to treat, 39 relation to injury, 26 rule, reason for contributory negligence, 33 satisfaction of claim, 174 services free, 39 suit in tort, 35 tort, 35 usual treatment, 28 wrong diagnosis, 43 Material, specified, 138 Materiality of false representation, 181 Matron, liability for act of, 48 Merchandise, 143 Minors : consent to operation, 73 necessaries furnished, 99, 101 statutes of limitations, 204 N Nature of subject, dental jurisprudence, 1 Necessaries, 97 to 99 artificial teeth, 98 definition, 98 dental services, 98 filling teeth, 99 husband and wife, 97 insane persons, 98, 99 minors, 99, 101 selection of dentist, 99 216 INDEX special contract, 97 teeth, 98 value, 97 wife, 98 Negligence, 27 accident, 37 agreement excusing, 36 anesthetic, 47 contributory, 32 criminal liability, 49 damages, 45, 49 death from, 48 definition, 27 established mode, 29 excused, never, 28 experimentation, 29 good faith, 27 gratuitous services, 39 infection. 46 malpractice, 26 matron, 48 never excused, 28 nurses, 28 partners, 47 patient, 28, 31 presumption from injury, 34 professional assistance, 33 question of law, 30 refusal to treat, 39 relation to injury, 29 suit in tort, 35 usual treatment, 28 wrong diagnosis, 43, 47 Notice to revoke license, 111 O Oath, 155 Operation, 69 consent to, 69 implied contract, 69 unauthorized, 75 Operator's duty — patient's right, 82 Opinion evidence, 154 definition, 154 value of services, 95 P Parent and child, 100 Partners, liability of, 47 Patient, negligence of, 31 Patient's right — operator's duty, 82 Pecuniary circumstances, as affecting fee, INDEX 217 Preponderance of evidence, 45 Presumption from infection, 56 Presumptions, 51 to 57 brooch in tooth, 55 care, 19 definition, 51 failure to cure, 34 gauze, surgical operation, 56 infection, 56 license, 97 negligence, 34 skill, 11 Privileged communications, 165 at common law, 166 code, Napoleon, 169 criminal purpose, 169 definition, 165, 166 dentists not included, 168 incidental information, 167 interpretation, 166 provisions, 166 purposes, 166 statutes, 166 waiver of privilege, 168 Procedure, 152 Progress, 24 Profession, nature of, 3 Qualification, of expert, 161 Quality, 139 Rape, 65 anesthetic, 66 definition, 65 effect of unchastity, 67 Reasonable opportunity, 111, 138 Reasonable time, 138 Receipt, 147 Refusal to take case, 39 Relief, patient and dentist, 34 Release, 149 Representations, false, 175 advertisement of, 192 cases in, 184 caveat emptor, 177 confidential relation, 176 damages, 194 elements of tort, 183 218 INDEX intent, 192 knowledge, 178, 188 materiality, 181 motive, 180 opinions, 177, 178 past fact, 177 remedies, 193 skill, 192 third party, by, 192 trust, 175 Requirements for license, 105 Rescission, 140 Res ipsa loquitur, 51 to 57 applied, 53 brooch, 55 definition, 51 fact, 51 fracture of jaw, 56 gauze, 54 infection, 56 jaw, fracture of, 56 law, 51 maxim, 52 operations, 54 other causes, 56 presumptions, 51 sponge cases, 54 surgical operations, 54 Restraint of trade, contracts, 195 injunction, 198 restrictions, 196 specific performance, 195 when valid, 195 Results, not guaranteed, 35 Revocation of license, 110 to 118 adjudicated cases, 116 charges, 111 to 114 criminal prosecution, 118 grounds, 114 immorality, 114 jury trial, 118 limitations, statutes of, 118 manner of revoking, 111 power of state, 110 right to revoke, 110 statutes of limitations, 118 Right to contract, 119, 128 S Satisfaction of claim, 174 Satisfaction of patient, 96, 141 INDEX 219 Sensitiveness of patient, 141 fee for, 88 to 102 Services, free, liability, 39 Skill, 7, 10, 12 agreement excusing, want of, 36 applied, 15 average, 11 best, not required, 13 bill not presented, 17 confused with care, 7 definition, 16 disease treated, 12 failure to relieve, 11, 17 generality of requirement, 10 highest, not required, 14 illustration, 13 intoxication, 17 license, 12 legal responsibility, 9 locality, 14 other vocations, 17 ordinarily skillful, 14 ordinary, 14 presumption, 11, 17 relative term, 12 result, 11 special claims, 23, 96 test, 12 time, 16 Special agreement, 96 Specialist, 23 Specific performance, 195 Specified material, 138 Sponges, 56 Statutes of limitations, 199 to 205 accrual of ca*use, 199 continuing wrong, 202 diligence, 199, 200 latent injury, 201 malpractice cases, 200 minors, 204 policy of law, 199 revocation of license, 118 specified services, 201 Subject, nature of, 1 Sunday, 170 charity, 171 contracts on, 170 necessity, 171 statutes prohibiting work, 171 Surgeon and dentist, 3 Survival of action, 173 220 INDEX Teeth, 58 age from, 58 identification by, 6 Terminology, 5 Testimony, 155 definition, 155 opinions, 155 under anesthetic, 65 Tort, false statement, 175 to 194 Treatment, one mode, 29 Trial bv jury, in revocation of license, 118 Trust, 175 U Unauthorized operation, 77 Unchastity in rape cases, 67 Unlicensed dentist, fee, 97 Unreasonable requirements, for license, 105 Vested rights, 110 W Wares, 143 Witnesses, 155 affirmation or oath, 155 definition, 155 expert, 160 oath or affirmation, 155 ordinary, 155 Workmanship, 139 Wrong diagnosis, liability, 43