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Published monthly from November to June, by students of the Yale Law School. P. Ó. Address, Box 893, Yale Station, New Haven, Conn.

If a subscriber wishes his copy of the JOURNAL discontinued at the expiration of his subscription, notice to that effect should be sent; otherwise, it is assumed that a continuation of the subscription is desired.

LIABILITY OF A SURGEON WHO PERFORMS AN OPERATION UNDER ANAESTHESIA UPON A PATIENT, WITHOUT THE EXPRESS CONSENT OF THE PATIENT.

In a recent case before the Supreme Court of New Jersey, it appeared that the plaintiff applied to the defendant to perform a surgical operation upon a rupture on his left groin. After the patient had been etherized, a rupture on the right side of a more serious character was discovered, which was likely to cause the plaintiff's death. The defendant operated on the more serious rupture, and was sued by the patient for assault and battery. The trial Court followed the opinion in Mohr v. Williams, 95 Minn., 361, to the effect that the patient must be the final arbiter to decide whether or not he will take the chances of the operation, and that therefore the consent of the patient, express or implied, must be given before the operation could be lawful, and rendered a substantial judgment for the plaintiff, from which the defendant appealed. The higher Court awarded judgment for the defendant, holding that when a person, who is in a serious condition, has selected a surgeon to represent him during an operation under anæsthesia, the law by implication casts upon him the duty of acting for the best interest of the patient. This implication, however, confers no right upon him to perform an operation of a

different sort from that to which the patient has consented, or which involves risks and results of a kind not contemplated. Berman v. Personnet, 83 Atl. (N. J.), 948.

The scope of a surgeon's authority in operating upon a patient depends a great deal upon circumstances. The relation may arise from contract express or implied, or by an implied license. If not laboring under such disability as to make an intelligent consent impossible, it is for the patient to decide whether or not the operation should be performed, and his consent is a prerequisite to the surgical operation. In the absence of fraud or misrepresentation, when the patient voluntarily submits to a given operation his consent will be presumed. In the case of Mohr v. Williams, 95 Minn., 361, it appeared that the defendant made a specialty of the disorders of the ear, and at the request of the plaintiff, examined her ears, and advised an operation on the right ear. After the patient had been placed under the influence of anæsthesia the defendant made an examination of the left ear, and found it in a more serious condition that the right ear. The defendant performed a successful operation on the left ear, but the plaintiff complained that her hearing was impaired by the operation, and that as it was done without her consent it was unlawful and constituted an assault and battery. The trial Court awarded her a verdict, and the defendant appealed. The Superior Court sustained the Court below, holding that there had been no authority given to perform the operation, and the patient should have been informed as to the operation, before the surgeon was justified in performing it. In this case it should be noted that the plaintiff's condition was not serious. In such a case the patient should be allowed to regain consciousness and be given an opportunity to consent to the operation.

In the case of Pratt v. Davis, 224 Ill., 300, the plaintiff had been suffering from epilepsy and consulted the defendant, a surgeon. He found that a major and a minor operation were necessary, but informed the patient of the necessity of only the minor one, to which she consented. It was performed and she left the hospital. Later she returned to have the same operation repeated. The surgeon noted her nervous condition, which he described as insanity, and knowing that she would not consent if asked, when she was under anæsthesia for the minor operation

he also performed the more serious one.

He acted in good faith

and used proper skill. The Court found that the patient was sane enough to be able to consent, and held the surgeon liable in exemplary damages.

The consent of the patient may be express or implied, from the circumstances of the case. Usually the question of implied consent is a question of fact for the jury, but in some cases the Court has held as a matter of law that the consent to the performance of a particular operation should be implied from the fact that the patient placed himself under the surgeon's care. When the patient leaves it to the discretion of the surgeon to proceed upon his best judgment, and, when the nature and extent of the operation cannot be fully determined by a preliminary examination, it is undoubtedly within the scope of his authority to exercise his discretion. In such a case, if during the operation, the patient being under anæsthesia, unusual and unexpected conditions are found that, in the judgment of the surgeon, call for a more extended or a different operation than the one contemplated, he may operate if in his judgment a failure to do so would imperil the life of the patient. The case of McClallen v. Adams, 19 Pick., 333, falls within this class of cases. In this case the defendant's wife, who was dangerously ill, was placed under a surgeon's care, and after the lapse of some weeks, the plaintiff performed an operation for the cure of the disease. Soon afterward she died. It was held, in an action for his services, that the performance of the operation was within the scope of the plaintiff's authority if, in his judgment, under the circumstances it was necessary and expedient. In all such cases the surgeon should have an understanding with his patient in advance to prevent a possible misunderstanding. The surgeon can protect himself from liability by obtaining authority from the person who is naturally, or legally, the parent or guardian. Consent of the husband under such circumstances to an operation on the wife, or by a parent to an operation upon a minor child, would protect him from liability.

In Wigmore's Summary of the Principles of Torts, Volume 2, page 880, he says: “A defendant is excused for harm done to the plaintiff when the plaintiff beforehand consented to the doing of that specific harm or class of harm", and: "Where the plaintiff's

consent is not expressly or impliedly given, and cannot be obtained, but it may reasonably be supposed from the circumstances that it would have been given if he could have been asked, the defendant is equally excused; namely, (a) Where his property or family is in danger of serious immediate harm and he is absent and there is no time to notify him; or, (b) Where his person is in danger of serious immediate harm and he is unconscious of it and there is no time to notify him."

The principal case seems to fall within the last class of cases, and can be justified on the ground of practical necessity rather than on that of contract express or implied. It would not be sound public policy to tie the hands of the surgeon, when in the exercise of his skill he could save the life of the patient. This rule is not a liberal one in its application, and should be applied only to cases in which the patient is in serious immediate danger of loss of life or limb, and where from the circumstances of the case it would be impracticable to obtain his consent.

LIABILITY OF A WAREHOUSEMAN TO AN ASSIGNEE OF A NON-NEGOTIABLE WAREHOUSE RECEIPT.

The decisions of the Courts are not uniform as to the effect of an assignment of a non-negotiable warehouse receipt, where the assignee gives no notice of the assignment to the warehouseman.

In a recent decision, Stephenville Compress Co. v. First Nat. Bank, 148 S. W. (Texas), 335, it was decided that, although warehouse receipts recite that the property which they represent will be delivered only upon the return of the receipts, a bank loaning money on the strength of such security is not warranted in relying upon the statement.

The principal case was an action brought by the assignee of a non-negotiable warehouse receipt against a warehouseman for delivering to the pledgor the property represented by the warehouse receipt. The receipt stipulated that the property would be delivered only upon the return of the receipt.

The ground of the decision in this case was that the receipts. were non-negotiable, and the assignee had failed to give the ware

houseman notice of the fact that he held the receipts as collateral or that he had any interest in the receipts.

A warehouse receipt is a contract of bailment between the owner of the goods and the warehouseman, serving as a document of title, and being either negotiable or non-negotiable, according to the obligations assumed by the warehouseman, or according to statutory provisions.

A warehouse receipt, in the absence of statute, is not a negotiable instrument in the commercial sense. If one takes under such circumstances by a transfer of the receipt he is in the same position as if he purchased the property itself. He acquires no better title than the pledgor had. DeWolf v. Gardner, 15 Barb. (N. Y.), 508.

The transfer of a warehouse receipt in good faith and in the ordinary course of business operates to transfer to the holder the title to the goods covered by the receipt. Davis v. Russell, 52 Cal., 611.

The Courts which follow the doctrine of the principal case hold that when the receipt is non-negotiable, the obligation of the warehouseman is toward the person designated as pledgor and no one else. It is said that although the assignment of the receipt vested title to the goods in the assignee, it did not transfer the contract; that the warehouseman could not be made bailee to the assignee without notice of the assignment of the contract.

"The receipt merely stands in place of the property it represents, and the delivery of it has the same effect in transferring the title to the property as the transfer of the property itself. The delivery of the receipt does not transfer the contract itself, so as to enable the assignee or indorsee to maintain an action upon it in his own name. There is no privity of contract between the warehouseman and the assignee. The assignee occupies no better position as regards the warehouseman than his assignor did." Jones on Pledges, Sec. 281.

The transfer of a non-negotiable warehouse receipt does not constitute the warehouseman the bailee for a stranger. He re

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