1. Whether the verdict was properly directed for the defendant at the first trial upon the count in contract is not considered, as the question is not before us. At the time of the second trial the counts in negligence and deceit presented the only issues of fact that remained undisposed of; and while judgment had not been ordered upon the verdict directed upon the count in contract, it seems, as the case then stood, that there was no occasion for a trial of any issue of fact upon that count, and the record presents no error in the ruling of the court as to this matter.
2. In arguing the questions raised by the plaintiff's exception to the verdict directed upon the count in negligence, counsel discussed at some length the standard of care by which the defendant is to be judged. It was contended in behalf of the defendant that it was the care, skill, and knowledge of the ordinary Christian Scientist who undertakes to treat diseases according to the methods practised by such healers, while the plaintiff's counsel claimed that it was the care, skill, and knowledge of the ordinary physician.
The latter position is clearly untenable. The principle involved is not new. It has long been recognized as the law of this state that "a person who offers his services to the community generally, or to any individual, for employment in any professional capacity as a person of skill, contracts with his employer that he possesses that reasonable degree of learning, skill, and experience which is ordinarily regarded by the community, and by those conversant with that employment, as necessary and sufficient to qualify him *Page 51 to engage in such business." Leighton v. Sargent, 27 N.H. 460, 469. The same principle governs the conduct of persons, other than professional men, who undertake duties requiring special qualifications. One employed to do work requiring skill upon a chattel is said to engage to use "that skill and diligence which prudent local workmen, of the same class, are wont to bestow upon similar undertakings." 1 Schoul. Bail., s. 104.
If, however, the employee is known not to possess the requisite skill, or is not called upon to exercise the particular art or employment to which he belongs, and he makes no pretension to skill in it, the law does not require that he should exercise the skill he is known not to possess, or the particular art or employment to which he does not belong and in which he does not pretend to be skilled. In such a case, if loss ensues because of his lack of the requisite knowledge and skill in the particular employment, it must be borne by the employer; for the employee under such circumstances is responsible only for a failure to reasonably exercise the skill which he possesses, or the judgment which he can employ. As is said in Story on Bailments (s. 435): "If a person will knowingly employ a common matmaker to weave or embroider a fine carpet, he must impute the bad workmanship to his own folly. So, if a man who has a disorder of his eye should employ a farrier to cure the disease, and he should lose his sight by using the remedy prescribed in such cases for horses, he would certainly have no legal ground of complaint." And in cases involving the liability of medical practitioners, courts have held that "if there are distinct and differing schools of practice, as allopathic or old school, homoeopathic, Thompsonian, hyropathic or water cure, and a physician of one of those schools is called in, his treatment is to be tested by the general doctrines of his school, and not by those of other schools." Patten v. Wiggin, 51 Me. 594; Carpenter v. Blake, 60 Barb. 488, 513, 514; Bowman v. Woods, 1 G. Gr. 441, 443; and cases cited in briefs of counsel.
In Bowman v. Woods, supra, which was an action against a botanic physician, who had attended the plaintiff at childbirth and had not removed the placenta for thirty-six hours after the accouchment, the defendant offered to prove that, according to the botanic system of practice in medicine, it was considered improper to remove the placenta; that it should be permitted to remain until expelled by efforts of nature. And it was held that such proof would be a defence; that "a person professing to follow one system of medical treatment cannot be expected by his employer to practice any other. While the regular physician is expected to follow the rules of the old school in the art of curing, the botanic physician must be equally expected to adhere to his *Page 52 adopted method. . . . The law does not require a man to accomplish more than he undertakes, nor in a manner different from what he professes."
In the present case the evidence discloses that the plaintiff was suffering from an attack of appendicitis, and that the defendant, a Christian Scientist, who held himself out as competent to treat diseases, upon being applied to, for treatment by the plaintiff, undertook for a reward to treat her. He told her, in substance, that her disease was curable without a surgical operation, that drugs and medicines should not be used, and that he could and would cure her if she would take the treatment. The plaintiff knew the treatment which the regular school of physicians would prescribe for appendicitis, and that the defendant was not a physician of that school and did not practice according to its methods, but was a Christian Scientist, and practiced according to the methods recognized by such healers.
Under these circumstances, a jury could not find that the defendant undertook to treat the plaintiff according to the methods of the regular school of physicians, or that he held himself out as possessing the knowledge and skill of the practitioners of that school. Such a finding would be contrary to what the evidence shows the parties understood, or could understand, at the time of entering into the contract; and the law will not imply an undertaking which a jury could not reasonably find from the evidence. Schoul. Bail., s. 105.
The plaintiff knew that she was not to be treated according to the methods of the regular school. Had she been an infant, non compos, or had never assented to Christian Science treatment, then the question whether the practice of Christian Science, as applied to the treatment of appendicitis, is so contrary to common sense and reason that it would be negligent for such a practitioner to undertake to treat the disease, might be open to consideration by jury. But being a person of mature years, and having sought such treatment, she cannot now complain that the method itself was improper. What the parties mutually expected was that the defendant would treat the plaintiff according to Christian Science methods; and it necessarily follows that the defendant, in the treatment of the plaintiff, is to be judged by the standard of care, skill, and knowledge of the ordinary Christian Scientist, in so far he confined himself to those methods.
3. Was there evidence tending to show that the defendant did not possess the knowledge and use the care and skill of the ordinary Christian Scientist, in the treatment of the plaintiff?
It has been held in cases where the medical profession recognizes but one course of treatment, that the adoption of any other *Page 53 course might be evidence of a want of ordinary knowledge, care, and skill (Patten v. Wiggin, supra; Howard v. Grover, 28 Me. 97, — 48 Am. Dec. 478, 483, note; Slater v. Baker, 2 Wils. 359; and cases cited in briefs of counsel); and the plaintiff's contention is, that when the defendant told her to keep about the room the same as usual, to eat anything she wanted, not to lie down, and took hold of her and made her sit up when she was lying down, he deviated from the recognized methods of the practice and was negligent.
While there was testimony that no material means are employed or considered by Christian Scientists in the treatment of disease, there was no evidence that these directions interfered with Christian Science practice; and we are of the opinion that a jury could not find from this evidence that the defendant deviated from the practice of the science, and that he did not possess the knowledge and use the care and skill of the ordinary Christian Scientist.
Exception to the verdict upon the count in negligence overruled.
CHASE and WALKER, JJ., did not sit: PARSONS, C. J., and REMICK, J., concurred.
After the filing of the foregoing opinion, upon the request of the parties they were further heard by brief and orally.