Samuel M'Clallen versus Eliphalet Adams, 19 Pick. 333

Shaw C. J. The Court are of opinion, upon the facts appearing by the bill of exceptions, that the defendant, by placing bis wife under the care of the plaintiff, whom he knew, at a distance from his own residence, for medical and surgical treatment, for a dangerous disease, impliedly requested him to do all such acts, and adopt such course of treatment and operations, as in his judgment would be most likely to effect her ultimate cure and recovery, with the assent of the wife, and therefore that the operation in question was within the scope of the authority given him.

They are also of opinion, that the assent of the wife, to the operation, was to be presumed from the circumstances. Although it might have been

an act of prudence in the plaintiff to give the defendant notice of the situation of the wife, and of his intention to perform a dangerous operation, yet we think he might safely trust to the judgment of the wife, to give her husband notice from time to time of her situation and intentions, and that it was not necessary, in point of law, for the plaintiff to give such notice, or have any new request, in order to enable him to recover a reasonable compensation for his services.

If the defendant intended to show, that the operation was unnecessary or improper, under the circumstances, or that it was unskilfully or carelessly performed, the burden of proof was on him.

The performance of this operation being within the scope of the plaintiff’s authority, if in his judgment necessary or expedient, and that it was so, is to be presumed from the fact, it was not necessary for him to prove to the satisfaction of the jury, that it was necessary and proper, under the circumstances, or that before be performed it he gave notice to the defendant, or that it would be dangerous to the wife to wait before he performed it, till notice could be given to the defendant.

The Court of Common Pleas, before which the cause was tried, having expressed an opinion and directed the jury, that these proofs were necessary to enable the plaintiff to recover a compensation for his professional services, this Court is of opinion, that that direction was wrong, that the exceptions be allowed, the verdict set aside, and a new trial had, and that the v,ause be remitted to the Court of Common Pleas for trial.