John H. De May and
Alfred B. Scattergood v. Alvira Roberts.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF MICHIGAN
46 Mich. 160; 9 N.W. 146; 1881 Mich.
April 12, 1881, Submitted
June 8, 1881, Decided
PRIOR HISTORY: [***1] Error to Gratiot. Submitted April 12.
Decided June 8.
DISPOSITION: Judgment affirmed with costs.
HEADNOTES: Intrusion upon case of confinement.
Where a physician takes an unprofessional unmarried man with him to
attend a case of confinement, and no real necessity exists for the
latter's assistance, both are liable in damages; and it makes no
difference that the patient or husband supposed at the time that the
intruder was a medical man, and therefore submitted without objection to
Damages may lie for an injury done, when its full extent is discovered,
though long after the act from which it springs.
A physician took an unprofessional friend with him to attend a case of
confinement when there was no emergency requiring the latter's presence.
The physician told the patient's husband that he had brought a friend
with him to help him carry his things, and he was accordingly admitted.
The patient, on afterwards discovering the facts, sued both in damages.
Held, that the plaintiff and her husband had a right to presume
that the outsider was a medical associate; that in obtaining admission
without disclosing his true character, the defendants were guilty of
deceit; that [***2] plaintiff had a right to testify that she had
supposed he was a physician or medical student, and also to give
evidence of whatever may have been said at the time tending to support
such supposition. It was also admissible to ask a competent witness as
to the custom among physicians in regard to calling assistance in these
A witness cannot be asked what he stated in an affidavit, but the
affidavit itself must be produced.
SYLLABUS: Case. Defendants bring error. Affirmed.
COUNSEL: H. & H. E. Walbridge for plaintiffs in error.
J. H. Kimball and J. K. Wright for defendant in error.
JUDGES: Marston, C.J. The other Justices concurred.
OPINION: [*161] [**146] The declaration in this case in the
first count sets forth that the plaintiff was, at a time and place
named, a poor married woman, and being confined in childbed and a
stranger, employed in a professional capacity defendant De May who was a
physician; that defendant visited the plaintiff as such, and against her
desire and intending to deceive her wrongfully, etc., introduced and
caused to be present at the house and lying-in room of the plaintiff and
while she was in the pains of parturition the defendant Scattergood,
who [***3] intruded upon the privacy of the plaintiff, indecently,
wrongfully and unlawfully laid hands upon and assaulted her, the said
Scattergood, which was well known to defendant De May, being a young
unmarried man, a stranger to the plaintiff and utterly ignorant of the
practice of medicine, while the plaintiff believed that he was an
assistant physician, a competent and proper person to be present and to
aid her in her extremity. [*162] The second and third counts while
differing in form set forth a similar cause of action.
The evidence on the part of the plaintiff tended to prove the
allegations of the declaration. On the part of the defendants evidence
was given tending to prove that Scattergood very reluctantly accompanied
Dr. De May at the [**147] urgent request of the latter; that the night
was a dark and stormy one, the roads over which they had to travel in
getting to the house of the plaintiff were so bad that a horse could not
be ridden or driven over them; that the doctor was sick and very much
fatigued from overwork, and therefore asked the defendant Scattergood to
accompany and assist him in carrying a lantern, umbrella and certain
articles deemed necessary upon such occasions; [***4] that upon
arriving at the house of the plaintiff the doctor knocked, and when the
door was opened by the husband of the plaintiff, De May said to him,
"that I had fetched a friend along to help carry my things;" he,
plaintiff's husband, said "all right," and seemed to be perfectly
satisfied. They were bidden to enter, treated kindly and no objection
whatever made to the presence of defendant Scattergood. That while there
Scattergood, at Dr. De May's request, took hold of plaintiff's hand and
held her during a paroxysm of pain, and that both of the defendants in
all respects throughout acted in a proper and becoming manner actuated
by a sense of duty and kindness.
Some preliminary questions were raised during the progress of the trial
which may first be considered.
The plaintiff when examined as a witness was asked, what idea she
entertained in reference to Scattergood's character and right to be in
the house during the time he was there, and answered that she thought he
was a student or a physician. To this there could be no good legal
objection. It was not only important to know the character in which
Scattergood went there, but to learn what knowledge the plaintiff had
upon that [***5] subject. It was not claimed that the plaintiff or her
husband, who were strangers in that vicinity, had ever met Scattergood
before this time or had any knowledge or information concerning him
beyond what they obtained on that evening, and it was claimed by the
[*163] defendant that both the plaintiff and her husband must have
known, from certain ambiguous expressions used, that he was not a
We are of opinion that the plaintiff and her husband had a right to
presume that a practicing physician would not, upon an occasion of that
character, take with him and introduce into the house, a young man in no
way, either by education or otherwise, connected with the medical
profession; and that something more clear and certain as to his
non-professional character would be required to put the plaintiff and
her husband upon their guard, or remove such presumption, than the
remark made by De May that he had brought a friend along to help carry
his things. The plaintiff was not bound however to rest her case upon
this presumption, however strong it might be considered, but had a right
to prove what she supposed was the fact, and this she could do by
showing anything said at the [***6] time having such a tendency, or in
the absence thereof what she actually believed to be the fact.
The question asked the plaintiff's husband as to what he had stated
under oath in an affidavit was properly overruled. This court has
repeatedly pointed out the proper practice in such cases. Hamilton v.
The People 29 Mich. 195, and cases cited.
The question asked the witness Dr. Monfort * as to the custom among
physicians in such cases as to calling assistance was not objectionable;
besides, the answer given could in no way have injured the defendants.
In either event therefore they cannot complain.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
* The testimony of Dr. Monfort was as follows: Question. "You say
you have been in practice about eight years; what is the custom among
physicians called upon to do the necessary duties attending cases of
mid-wifery in reference to calling in assistance? Answer. I
suppose that would depend somewhat upon the circumstances under which
the case existed; usually it is not the custom to have assistance,
unless the case demands it; after it is ascertained that assistance is
required, it is customary and proper to call medical assistance; in an
urgent case, perhaps most any kind of assistance; but medical if it
could be obtained."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***7]
It yet remains to consider the principal questions raised in the case.
They relate to the sufficiency of the declaration, to which the general
issue was [**148] pleaded, and farther that [*164] admitting the
facts to be true as claimed by the plaintiff she was not entitled to
recover. We need not consider the question as to what the effect would
be had the jury found that the plaintiff knew the non-professional
character of the defendant Scattergood and made no objection or
consented to his remaining in the house or rendering such assistance as
was demanded. Upon this branch of the case the court charged the
defendants would be justified in doing what they did, if the plaintiff
or her husband consented to Scattergood being there, with a full
understanding of, or with good reason to believe or know of the
character in which he was there. This certainly was placing the matter
in a sufficiently favorable position for the defendants.
A few facts which were undisputed may assist in more clearly presenting
the remaining question. Upon the morning of January 3d Dr. De May was
called to visit the plaintiff professionally which he did at her house.
This house was fourteen by sixteen feet. A [***8] partition ran partly
across one end thus forming a place for a bed or bedroom, but there was
no door to this bedroom. Next to this so-called bedroom, and between the
partition and side of the house, there was what is known and designated
as a bed sink; here there was a bed with a curtain in front of it, and
it was in this bed the doctor found Mrs. Roberts when he made his first
visit. On their way to the house that night De May told Scattergood, who
knew that the plaintiff was about to be confined, "how the house was;
that she was in the bed sink back, and there was a curtain in front of
her, and told him he need not see her at all." When the defendants got
to the house they found Mrs. Roberts "had moved from the bed sink and
was lying on the lounge near the stove."
I now quote farther from the testimony of Dr. De May as to what took
"I made an examination of Mrs. Roberts and found no symptoms of labor at
all, any more than there was the previous morning. I told them that I
had been up several nights and was tired and would like to lie down
awhile; previous to this, however, some one spoke about supper, and
supper was got and Scattergood and myself [*165] eat supper, [***9]
and then went to bed. I took off my pants and had them hung up by the
stove to dry; Scattergood also laid down with his clothes on. We lay
there an hour or more, and Scattergood shook me and informed me that
they had called and wanted me. Scattergood got my pants and then went
and sat down by the stove and placed his feet on a pile of wood that lay
beside the stove, with his face towards the wall of the house and his
back partially toward the couch on which Mrs. Roberts was lying. I made
an examination and found that the lady was having labor pains. Her
husband stood at her head to assist her; Mrs. Parks upon one side, and I
went to the foot of the couch. During her pains Mrs. Roberts had kicked
Mrs. Parks in the pit of the stomach, and Mrs. Parks got up and went out
doors, and while away and about the time she was coming in, Mrs. Roberts
was subjected to another labor pain and commenced rocking herself and
throwing her arms, and I said "catch her," to Scattergood, and he jumped
right up and came over to her and caught her by the hand and staid there
a short time, and then Mrs. Parks came up and took her place again, and
Scattergood got up and went and took his place again, back by [***10]
the stove. In a short time the child was born. Scattergood took no
notice of her while sitting by the stove. The child was properly cared
for; Mrs. Roberts was properly cared for, dressed and carried and placed
in bed. I left some medicine to be given her in case she should suffer
Dr. De May therefore took an unprofessional young unmarried man with
him, introduced and permitted him to remain in the house of the
plaintiff, when it was apparent that he could hear at least, if not see
all that was said and done, and as the jury must have found, under the
instructions given, without either the plaintiff or her husband having
any knowledge or reason to believe the true character of such third
party. It would be shocking to [**149] our sense of right, justice and
propriety to doubt even but that for such an act the law would afford an
ample remedy. To the plaintiff the occasion was a most sacred one and no
one had a right to intrude unless invited or because of some real and
pressing necessity which it is not pretended existed in this case. The
plaintiff had a legal right to the privacy of her apartment at such a
time, and the law secures to her this right by requiring others to
observe [***11] it, and to abstain from [*166] its violation. The
fact that at the time, she consented to the presence of Scattergood
supposing him to be a physician, does not preclude her from maintaining
an action and recovering substantial damages upon afterwards
ascertaining his true character. In obtaining admission at such a time
and under such circumstances without fully disclosing his true
character, both parties were guilty of deceit, and the wrong thus done
entitles the injured party to recover the damages afterwards sustained,
from shame and mortification upon discovering the true character of the
Where a wrong has been done another, the law gives a remedy, and
although the full extent and character of the injury done may not be
ascertained or known until long after, yet in an action brought damages
therefor may be fully awarded. This is true both in cases of tort and
crime as well as in actions for breach of contract. The charge of the
court upon the duty and liability of the defendants and the rights of
the plaintiff was full and clear, and meets with our full approval.
It follows therefore that the judgment must be affirmed with costs.
The other Justices concurred. [***12]