ferent rule. It permits the jury to give what it terms punitive, vindictive or exemplary damages; in other words, blends together the interests of society and the aggrieved individual, and gives damages not only to recompense the sufferer, but to punish the offender:" Seg. on Dam. 38. And see Field on Dam., § 26; 2 Greenl. on Ev. §§ 263–273; Field's Lawyers' Briefs, §§ 429, 434, 436, 437, 438.

In an action to recover damages for malpractice the plaintiff is not in any case entitled to recover anything on account of pain and suffering caused by the disease or injury, but only for such additional pain and suffering as is produced by the negligence or want of proper care and skill by the defendant: Wenger v. Calder, 78 . Ill. 275.

CHAPTER IX.

COMPENSATION.

§ 112. The contract for services and compensation may be express or implied.

The contract between a physician or surgeon and his patient or employer may be express or implied, and if express it may be specific or general, conditional or unconditional. If the agreement is formally stated, either verbally or in writing, it is an express contract; but if it is a matter of inference or deduction from the acts and conduct of the parties, and the circumstances attending them, it is an implied contract. And in the latter case the contract may be enforced as well as in the former, as by a fiction of law, 30 to speak, the parties are supposed to have made those stipulations and agreements which as nonest and fair men they ought to have made, and the law assumes that they have made them. This doctrine is universally recognized in all cases of implied contracts; and it may be ob

served that the contract between the physician or surgeon, and his patient or employer, is usually an implied one; the services being rendered merely on the express or implied request of the latter: See Secoa v. True, 53 N. H. 627; Allen v. Merchants' Bank, 22 Wend. 215; Bank v. Wheeler, 48 N. Y. 492; Express Co. v. McVeigh, 20 Gratt. (Va.) 264; Nevins v. Lowe, 40 Ill. 209; Ogden v. Saunders, 12 Wheat. (U. S.) 341; States v. Russell, 13 Wall. (U. S.) 623. An employment of a physician by a husband to attend his wife would be presumed to continue through the illness, though the wife be removed from the husband's home: Potter v. Virgil, 67 Barb. (N. Y.) 578. But if there be an express contract, whether verbal or in writing, that will regulate the rights of the parties in respect to all matters covered by it, and no contract or stipulation will be implied to affect such contract. If, however, the express contract embraces only a part of the subject-matter of it, as where there is a stipulation as to the price to be paid a physician or surgeon for each visit to the patient, and there is no stipulation as to the number or frequency of the visits, or the skill and

care to be bestowed, the former would be fixed by the express contract, whereas the latter would be controlled by an implied contract: See ante, § 96; Lynch v. Onondaga Salt Co., 64 Barb. (N. Y.) 558; Creighton v. Toledo, 18 Ohio St. 447; Walker v. Brown, 28 Ill. 378; Ballou v. Prescott, 64 Me. 305.

§ 113. Common presumptions; amount of compensation implied.

The general principles of the law relating to master and servant would be applicable to the physician or surgeon and his patient or employer. Thus, if the former renders services to the latter by his request, express or implied, or if he has knowledge that they are being performed under such circumstances as raise a presumption of employment, and especially where he is present and assents to the performance, it would, in the absence of proof to the contrary, raise a reasonable if not conclusive presumption of a contract between the parties for the services, and of an undertaking on the part of the latter to pay so much as they were reasonably worth: See Cummins v. Chambers, 75 Ind. 409. The following cases illustrate the general principles on this sub

ject Cummings v. Nichols, 13 N. H. 420; Christee v. Sawyer, 44 N. H. 298; Law v. Railroad Co., 45 N. H. 370; Weeks v. Holmes, 12 Cush. (Mass.) 215; Academy v. Allen, 14 Mass. 176; Hurley v. Van Wagoner, 28 Barb. (N. Y.) 109; Moreland v. Davidson, 71 Pa. St. 371; Van Arman v. Boynton, 38 Ill. 443; Jones v. Quincey, 9 Gratt. (Va.) 708; Martin v. Fox, 19 Wis. 552; Allen v. Richmond College, 41 Mo. 302. In the case last cited it was observed by the court: "No person can by officious intermeddling cast a liability upon another, and an obligation will not generally be imposed unless there has been a previous request moving from the obligor and inuring to the obligee. But where the party derives a benefit from the consideration, or the act done is beneficial, his subsequent express promise will be binding, and even his subsequent assent will be sufficient evidence upon which to predicate a previous request. Assent may be implied from the acts of another, or his silent acquiescence:" See Hapgood v. Houghton, 10 Pick. (Mass.) 154; Munger v. Munger, 33 N. H. 581; Aney's Appeal, 49 Pa. St. 126; De Wolf v. Chicago, 26 Ill. 443; Ford