F. WALTON TODD Respondent, v. B. F. MYRES, Appellant, 40 Cal. 355

Temple, J., delivered the opinion of the Court: The answer admits that defendant employed plaintiff as a physician, to attend and treat his wife and children. Having been thus employed, the plaintiff was the best and the proper judge of the necessity of frequent visits, and in the absence of proof to the contrary, the Court will presume that all the professional visits made were deemed necessary, and were properly made. It would be a dangerous doctrine for the sick to require a physician to be able to prove the necessity of each visit, before he can recover for his services.

This is necessarily a matter of judgment, and one concerning which no one, save the attendant physician, can decide. It depends, not only upon the condition of the patient, but, in some degree, upon the course of treatment adopted. The item- of $30, which accrued on the 16th day of March, a.d. 1867, and the item of $5, which accrued on the 19th day of April, a.d. 1868, are not within the allegations of the complaint, and judgment fas improperly entered for those sums. The judgment must be modified by deducting the amount of these two items.

Ordered that the judgment be modified by deducting therefrom the sum of $85, and the judgment thus modified is affirmed.