v. Ward, 26 Ark. 360; Cooper v. Railroad Co., 13 N. Y. Supreme Ct. 276.

§ 114. Where the request for services is made for the benefit of another.

If a mere request is made by one to another to do some act or perform some service for the benefit of a third party, and the act or service is done with the knowledge that the party making the request will derive no benefit therefrom, and does not expect to pay for the same, the law will not imply an employment by the latter, and there would be no implied promise to pay therefor: Norris v. Dodge, 23 Ind. 190. Thus, where a person requested a physician to render some medical assistance to his brother, in an action by the physician against the person making the request to recover for the services, it was held that in order to recover on the ground of a request it must appear that the person making it intended to pay for the services, and that both parties understood it that way: Smith v. Watson, 14 Vt. 332. See also Boyd v. Sappington, 4 Watts (Pa.), 247; Williams v. Breckell, 37 Miss. 682; Bachelder v. McKinney, 36 Me. 555; Kittridge v. Newbury, 14 Mass. 448; Dunbar v. Williams,

10 Johns. (N. Y.) 249; Evarts v. Adams, 12 Johns. 352; Anderson v. Hamilton, 25 Pa. St. 75; Bartholomew v. Jackson, 20 Johns. (N. Y.) 28; Percival v. Nevilla, 1 Nott & McC. (S. C.) 452; 4 Field's Lawyers' Briefs, §§ 581, 582.

§ 115. Intrusive and voluntary services.

The same rule would apply in case of the voluntary and intrusive services of a physician or surgeon, as in case of such services in other cases. We have heretofore stated the general rule of law in such cases as follows: "If a person gratuitously or voluntarily renders services to another, without expectation of compensation or reward, or without the assent or request of the latter, express or implied, no recovery can be had therefor, however meritorious they may have been, as it is a principle of the law that a person cannot make another his debtor without his assent: 4 Field's Lawyers' Briefs, § 580; Bartholomew v. Jackson, supra; Lee v. Lee, 6 G. & J. (Md.) 316; Hertzog v. Hertzog, 29 Pa. St. 465; Doane v. Badger, 12 Mass. 65; Mumford v. Brown, 6 Cow. (N. Y.) 475; Watson v. Ladoux, 8 La. An. 68; Levee Com. v. Harris,

20 La. An. 291. But meritorious services voluntarily rendered will constitute a valid consideration for a promise thereafter made to pay for the same: Davidson v. Davidson, 13 N. J. Eq. 246; Grandier v. Reading, 10 N. J. Eq. 370; Snyder v. Castor, 4 Yeates (Pa.) 353; Lee v. Lee, 6 G. & J. (Md.) 316.

§ 116. Measure of value of services.

The value of the services of a physician or surgeon may depend upon a variety of circumstances, as upon the nature and character of the disease or other physical or mental affliction of the patient; the amount of knowledge and skill required in the treatment; the circumstances under which the services were rendered; the difficulties and expenses attending them, and the responsibilities devolving upon him: See Commissioners v. Chambers, 75 Ind. 409; Coms. v. Brewingtown, 74 Ind. 7.

In a recent case it was held that a physician, claiming for his services, may properly consider the patient's ability to pay. And where a physician claimed $2,000 for services in operating upon a cancerous stricture of the oesophagus,

and it appeared on the trial that the patient's estate was of the value of between seven and eight thousand dollars, and the jury rendered a verdict for only $500, on appeal, the Supreme Court of Louisiana, increased the amount to $1,000.

§ 117. Judgment for services a bar to action for malpractice.

On general principles, it may be observed that, if a judgment is recovered by a physician or surgeon against his patient for services, the latter cannot, at least under the modern practice, afterwards maintain an action against the former for malpractice in performing the services, especially if the latter had knowledge of the alleged malpractice, and could have interposed it as a defense to the original suit, and have claimed therein damages for the alleged malpractice, by way of counter-claim: Blair v. Bartlett, 75 N. Y. 150. See also Actions and Defenses, 1 Field's L. B., § 91.

§ 118. Statutes regulating the collection of compensation. In various states there are statutes regulating the collection of fees of physicians and surgeons,

and the practice of medicine. In some of them they cannot recover for their services unless they have a diploma, and in others unless they are licensed to practice medicine by a board appointed for this purpose under statutes: Ante, § 90.

Thus in Georgia a physician cannot recover for his services unless he shows that he is licensed as provided by statute, or unless he shows himself to be within the proviso in favor of physicians who were in practice before the statute was adopted: 8 Ga. 74.

So in Alabama and Missouri an unlicensed physician cannot recover for professional services: 21 Ala. 680; 15 Mo. 407.

So in Wisconsin, he cannot recover for his services unless he has a diploma. But it has there been held that in an action by a practicing physician for personal injuries, he may claim damages for being rendered unable to continue his practice, although he had no diploma: McNamara v. Clintonville, 62 Wis. 207. And in an action for medical services it has been held that it will be presumed that the plaintiff has one until the contrary is shown: Thompson v. Sayre,