NEW JERSEY LAW SCHOOL1 In the Moot Court. CHARLES WILLIAMS VS. DUNCAN Cameron. A physician who performs an operation upon a wife contrary to the husband's direction is not liable to the husband if it is necessary. Charles Basile and Samuel B. Finklestein, for the Plaintiff. John W. Palmer and Abraham V. Alboum, for the Defendant. Opinion by CHAPIN, J. This action was brought to recover damages for loss of consortium and for expenses which plaintiff averred were necessarily incurred by him because of an operation upon his wife for chronic appendicitis performed contrary to his directions by defendant, a physician. At a trial had before me on the 13th day of February, 1915, the jury were instructed that if they found that plaintiff had forbidden defendant to perform the operation, and defendant had nevertheless done so, a verdict must be rendered in plaintiff's favor. Defendant now seeks to set aside a verdict for $2150 rendered against him on the ground of misdirection. The question is thus squarely presented whether a physician is justified in performing an operation upon a wife in the face of the husband's prohibition. Authorities are very meagre and not wholly satisfactory. In Pratt v. Davis (224 Ill. 300) it was held that authority given by a husband to perform one operation upon his wife will not confer authority to perform a second. It should be noted, however, that here the wife was insane and therefore unable to consent, a fact which differentiates that case from the present. In 'Complaint is sometimes made that law schools are failing to live up to their obligations in that they do not equip their students with a knowledge of practical details. To a large extent this charge is undeserved, since there are necessarily but a restricted number of hours which can be used and it is thought better to make every effort to inculcate the fundamental principles of substantive law. Were more stress laid upon adjective law, it would mean that the time of study, short enough as it is, would be unduly lessened. But there are ways in which a student can receive some preliminary training and one of the best is by means of the courts. The New Jersey Law School has adopted this method during the past year and expects to continue it during the coming year. The method sometimes employed is to select counsel and hand to them statements of what their witnesses will testify; sometimes the witnesses will be sent to see a moving picture of an accident; sometimes they will be given a novel such as "Constance Trescott" which contains material. Then the case is tried exactly as a real case would be and a verdict rendered in accordance with the facts shown, There is absolutely no McClallan v. Adams (19 Pick. 333) the husband had placed his wife with the physician for treatment. His consent to the operation was considered to have been shown. Bakker v. Welch (144 Mich. 632) is to my mind rather unsatisfactory. Here a son had gone to a physician, accompanied by certain relatives. Later he returned and the operation was performed. It is quite probable that in the meantime he had spoken about the matter to his father. The court took the view that there was nothing to indicate that the father did not approve of the operation. Probably the consent was here shown by circumstances. In such cases, however, it would seem best to submit to the jury, the distinct issue, whether such consent did in fact exist. In Rishworth v. Moss (Tex. Civ. App. 159 S. W. 122) recovery was allowed by the parent of a child of eleven years who had been taken to the physician by an adult sister for the removal of adenoids. The physician might easily have communicated with the parent, but failed to do so. It was held that as there was no evidence showing that the authority of the parent had been delegated to the sister, and as no emergency existed, the operation was unlawful. Lastly there is the case of State v. Housekeeper (70 Md. 162). ation was for cancer and it appeared that the husband had expressed a willingness that there should be an operation for tumor. Furthermore the operation appears to have been necessary for the preservation of the wife's life and the husband was present and assisted in the work of preparation. Here the oper So far as we have been able to discover (and we have been greatly assisted by the excellent briefs of counsel on both sides) the foregoing are the only cases in which this question has been discussed. To us it would seem that the operation may have been performed under five combinations of circumstances. element of comedy involved, proceedings are transacted with all the solemnity of a court of justice and in no sense is it a "mock trial" in the usual acceptation of the term, for any departure from perfect seriousness is sternly repressed. The average member of the bar upon looking backward to the time when he was admitted, will realize what an enormous benefit it must be to a student to participate in such a proceeding. He is here called upon to make use of the knowledge which he has obtained, particularly of the rules of evidence and "to think while he is on his feet" and this is true not only of counsel but also of the jurymen and other participants. When these men are admitted to practice, they will be much better lawyers because of their experience. If it be urged that the student can attend regular trials, the answer must be made that he will have much more interest in a matter in which he has taken some action. As illustrative of the method pursued and also because of its intrinsic merit, we publish the following opinion rendered by Prof. H. Gerald Chapin in a case tried this year before him in the Moot Court. 1. Where it is necessary to save the wife's life, an emergency existing requiring instant action and there is no opportunity to communicate with the husband. 2. Where the operation is necessary in order to save the wife's life and there is an opportunity to communicate with the husband. 3. Where the operation is necessary in order to prolong the life of the wife, but no emergency exists. 4. Where the operation is not necessary to save or prolong the life of the wife, but will add materially to her physical comfort. This is the present case, since the testimony shows that the plaintiff's wife had been suffering severe pain which was likely to continue but it did not appear that the attacks of chronic appendicitis to which she was subjected would necessarily shorten her life. 5. Where the operation is not necessary for the purpose of saving or prolonging life or of relieving physical pain. Such would be the case where the wife would have a mole or disfigurement upon her face removed. There can be, we think, little doubt that in the first case the husband could maintain no action against the physician. But we can see a possible reason for permitting an action in the second and third classes, since it might be that the husband would not desire that the operation be performed by the physician chosen by the wife and it might be argued that the power of selection should rest with him. On the whole, however, it would seem more in accord with the trend of the law and more in consonance with the policy which accords to her the control of her person, that the physician should be able to act without fear of consequences, at least where the husband's expression of dissent had not been communicated to him. We now come to the fourth case and here the question is one of great difficulty. On the one hand an analogy is sought to be drawn between the present case and actions of criminal conversation, where the wife's consent is, of course, no bar to a suit by the husband. On the other, it is urged that this action should be decided on the principle which denies recovery for injuries due to negligence where the wife has contributed thereto. Or better, still, there may be invoked the doctrine of assumption of risk. Thus let it be supposed that instead of an operation having been performed upon the wife, she had entered certain premises after reading a sign which contained the information that there was a dangerous dog thereon. It cannot, we think, be questioned that the husband could not recover. But none of these three cases would appear to constitute a sufficiently close analogy. In the first, criminal conversation, though there is a combination of two wrongdoers to injure a third, and in this it may resemble the case at bar, the combination is formed for an inherently immoral purpose, which the present operation is not. Had an abortion been performed, it would seem that the physician should be held responsible to the husband. In the second and third the defendant's wrong was not wilful or active, but merely passive. In a sense the situation was thrust upon him by the wife and although this may seem but a slight difference, it is, we think, a substantial one. But cannot this case be decided upon the principles that govern the liability of the husband for necessaries supplied to the wife. Suppose the present defendant the physician had sued the plaintiff, the husband, for the cost of the operation. Necessarily a husband is not responsible even for conceded necessaries where he causes a wife to be supplied. If, however, the husband fails to do so (and in this case it must be remembered that the basis of plaintiff's complaint is that the husband did refuse to consent to any operation at all) it is clear that the physician might recover, for it cannot well be doubted that an operation for appendicitis under the circumstances here disclosed, may be regarded as a necessary. When we once settle this point, do we not decide the case? Surely it would be a most peculiar condition of affairs to permit the physician to recover for the value of his services in an action against the husband, and to allow the husband in another action to recover against the physician for the operation. For the foregoing reason, I reach the conclusion that error was committed. It should have been left to the jury under proper instructions to determine whether the operation was a necessary. If it was, they should be directed to render a verdict for defendant, if it was not, for the plaintiff. It might be added that in my opinion liability in the fifth class of cases might well be tested in the same manner. If the circumstances are such that the husband would be responsible for the cost of the operation in an action brought by the physician, he should not be permitted to recover. If otherwise it would seem that recovery should be allowed. The verdict is set aside as contrary to law and a new trial is granted. RECENT DECISIONS. W. STANLEY NAUGHRIGHT, Editor-in-charge. CONTRACTS-SUNDAY SALE-RATIFICATION.-In Rosenblum v. Schachner, (84 N. J. L. 525, 87 Atl. 99) held that where the original contract was void, having been made on Sunday, the delivery by the vendors and the retention by the defendant of the merchandise under that contract is a sufficient consideration for a new express promise to pay for it made thereafter by defendant, and a recovery may be had on the new express promise. The consideration emanating from the tainted contract will be sufficient to form a foundation for a new express promise (Reeves v. Butcher, 31 N. J. L. 224; Brewster v. Banta, 66 N. J. Law 367, 49 Atl. 718). The common law made no distinction between contracts entered into on Sunday and those made on any other day; (Heavenridge v. Monday, 34 Ind. 28, Woodbridge v. Woodbridge, 69 W. Va. 554, 72 S. E. 654), and contracts entered into on Sunday were not, because of that fact, regarded as void, (Swann v. Swann, 21 Fed. 299). Practically all of the States of the Union, however, have what are termed Sunday laws (Compiled Statutes of New Jersey p. 5712) prohibiting among other things the transaction of "business" on the Christian Sabbath, and the courts hold generally that the making of a contract is within the term business as used in the statute. A contract made on Sunday is void ab initio and cannot be ratified (Riddle v. Keller, 61 N. J. Eq. 513), and a subsequent admission of the maker that he had precedently executed it is not such a re-creation of the contract as to give it efficacy (Armstrong v. Toler, 11 Wheat. (U. S.) 258, 6 L. ed. 468). There are cases, however, which term Sunday contracts void, but nevertheless hold that such contracts may be affirmed, ratified or adopted on a secular day (McKinney v. Demby, 44 Ark. 74, McAuliffe v. Vaughan, 135 Ga. 852, 70 S. E. 322, 33 L. R. A. (N. S.) 255), while some cases hold that the ratification must be in effect a new contract (Cattlett v. M. E. Church, 62 Ind. 365, 30 Am. Rep. 197). W. S. N. ADMIRALTY; MARITIME LIENS-VESSEL OWNED BY CORPORATION-SUPPLIES FURNISHED BY DIRECTORS THEREOF.-In the Cimbria, (214 Fed. 131), decided in the United States District Court for the District of New Jersey it was held that a stockholder and director in a steamboat company, who took an active part in the management of its business, was in essence a part owner of its vessels, and, as against strangers to the title who have maritime liens, is not entitled to a maritime lien on one of the company's vessels for supplies furnished or for advances made to pay claims for repairs and supplies; (See also Petrie v. The Steam Tug Coal Bluff No. 2 (D. C.) 3 Fed. 531). A stockholder of a corporation owning a vessel, while not holding the legal title, is in essence a part owner of such vessel, and to permit stockholders to share with their creditors in the distribution of their own property, would be not only encouragement to frauds of the grossest description, but utterly inconsistent with natural justice; (The Benton, 3 Fed. Cas., 256, No. 1334). It is the general rule that a part owner cannot acquire a lien to the prejudice of outside lien holders (The Queen of St. Johns, 31 Fed. 24), although it has been held that the fact that one who lent money |