Black v. Bearden

Hart, J., (after stating the facts). The -cause of action of the plaintiff is based upon two counts. The first was that there was no express contract between him and Dr. Black for the dental work in question. After Dr. Black and his assistant had done the work, Dr. Black represented to him that $150 was a reasonable price for the work, and he paid him that amount on the faith of this representation. He afterwards found that Dr. Black had -overcharged him, and he sued to re-cover the overcharge. In the second count the plaintiff alleged that the defendant had negligently and unskillfully performed the dental work and thereby -caused his gums to rise :and give him great pain. On the other hand, it is the contention of the defendant that the plaintiff agreed to pay him $150 before he commenced the work, and that the work was done in a skillful manner. It cannot be doubted that a -dentist is entitled to recover from a patient the amount agreed to be paid him for his -services under an express contract. If no express contract was made, he would be entitled to recover a reasonable compensation for his services. For example: if there was no express contract between the parties, and, after the- work was done, Dr. Black had demanded an unreasonable fee, Bearden might have refused to pay him, and in a suit Dr. Black would only be entitled to recover upon a quantum meruit. On the other hand, if Bearden paid the amount demanded, he could -only recover the overcharge on the ground that the settlement had been procured through fraud. In the case of Guild v. Whitlow, 162 Ark. 108, the defendant -claimed that he was induced to agree to pay a surgeon a specified amount for an operation on his representation that such a sum was a reasonable charge. The court held that he could not set aside the contract on the ground of fraud simply because the fee was unreasonable. The court further said that it is not sufficient to show that the contract was procured by fraud, to prove that the surgeon charged more than other surgeons charged for a similar operation in the same city. There must be some mental distress caused by the attending circumstances, which would amount to fraud in law, because the party seeking to enforbe his contract had taken an unconscionable advantage of one who, under the circumstances, had a right to rely upon his representation that the fee was a reasonable one. In that case the contract was made before the operation was performed. Here the same principle applies. The services were performed before the fee charged by the dentist was paid. Barden was under no duress whatever. No coercion of any sort was practiced upon him. He made the payment of his own volition, simply because Dr. Black told him the charge was a reasonable one. As we have already seen, this is not sufficient to establish fraud. There is not even testimony- in the record sufficient to legally establish that the charge made by Dr. Black was unreasonable. It is true that the plaintiff testified that Dr. Pate told him that he would have been glad to have done the work for $13. Dr. Pate denied having made this statement. Hence the testimony of the plaintiff did not amount to affirmative testimony that the charge was unreasonable. Dr. Pate having denied making the statement, the testimony of the plaintiff to the effect that he did make it could only go to test the credibility of Dr. Pate as a witness. We do not deem it necessary to set out the instructions given by the court. It is sufficient to say that, as a whole, they submitted to the jury the question of whether or not the plaintiff was entitled to recover on his count for overcharge, and, there being no testimony upon which to submit this question to the jury it was error to do so. The error was necessarily prejudicial, because this court cannot tell whether the verdict of the jury was based on the count for overcharge or the count for malpractice. Carrigan v. Nichols, 148 Ark. 337; Huddleston v. St. L. I. M. &. So. Ry. Co. 88 Ark. 454; Moore v. Moss, 117 Ark. 593; and District Grand Lodge No. 11, etc. v. Pratt, 96 Ark. 614. The plaintiff’s own testimony was sufficient to enable him to go to the jury on question of whether the dentist had been negligent in his work of crowning one tooth and filling the other. He testified that the crown came loose within three months, and that the dentist, iii working on his other teeth, negligently permitted his instrument to slip and badly injure his gums, and thereby caused an abscess which gave him great pain. In Dunman v. Raney, 118 Ark. 337, the court held that a physician .or surgeon is only bound to possess and to exercise that degree of skill and learning ordinarily possessed and exercised by members of his profession in good standing practicing in the same line, and in the same general neighborhood or in similar localities. The court further said that he must use reasonable care in the exercise of his skill and learning, and must act according to his best judgment in the treatment of his patients. The rules governing the duty and liability of physicians and surgeons in the performance of professional services are applicable to practitioners of the kindred branches of the healing art, such as dentists, oculists, and manipulators of x-ray machines. 21 R. C. L; § 31, p. 386, and cases cited. See also Runyan v. Goodrum, 147 Ark. 481. We also call attention to the fact that, in the case of Dunman v. Raney, 118 Ark. 337, the court decided the basis for awarding damages in an action by a patient against a physician for improper treatment. It follows that, for the error in submitting to the jury the question of overcharge, the judgment must be reversed and the cause remanded for a new trial.