Cotnam v. Wisdom

83 Ark. 601, 104 S.W. 164 (1907)



The evidence of an actual contract is generally to be found either in some writing made by the parties, in verbal communications which passed between them or in their acts and conduct considered in the light of the circumstances of each particular case. A contract implied by law, on the contrary, rests upon no evidence. It has no actual existence; it is simply a mythical creation of the law. The laws says that it shall be taken that there was a promise when, in point of fact, there was none. Of course, this is not good logic, for the obvious and sufficient reason that it is not true. It is a legal fiction, resting wholly for its support on a plain legal obligation and a plain legal right. If it were true, it would not be a fiction. There is a class of legal rights, with their correlative legal duties, analogous to the obligations quasi ex contractu of the civil law, which seem to lie in the region between contracts on the one hand and torts on the other, and to call for the application of a remedy not strictly furnished either by actions ex contractu or actions ex delicto. The common law supplies no action of duty, as it does of assumpsit and trespass; and hence the somewhat awkward contrivance of this fiction to apply the remedy of assumpsit where there is no true contract, and no promise to support it.


Two doctors were summoned to render aid to decedent, who had been thrown from a street car. The doctors submitted their $2,000 claim to the probate court, which only allowed a claim of $ 400. They appealed to the circuit court, where the jury awarded $ 650 after the doctors argued to the jury that their $ 2,000 claim was based on the decedent's net worth and the fact that he had died leaving only collateral heirs.


Are both phsyicians eligible to be compensated based on the net worth of the decedent they operated on?




The compensation to be given to surgeons during an operation done to an unconscious patient who never regained consciousness should be compensated. However, this must not be based on the ability of the said patient to pay. The right of the physicians to recover must only be a fair charge for their skill, time and services. Hence, they are eligible for compensation fair for the patient as well.

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