This case involves the rights and liabilities of medical practitioners, called in this country by the appellation of physicians. In England, physicians are a class of persons who have a diploma from a College of Physicians, and are entitled to the honorary distinction of Doctor of Medicine. They could not maintain suits for their fees by the Common Law any more than could Barristers at law. (Lipscomb v. Holmes, 2 Campb. R. 441 ; Chorley v. Balcot, 4 Tenn. R. 317.) Apothecaries and surgeons could maintain actions for their medicines and services, and were liable to be sued for any damage resulting from a want of ordinary care, diligence and skill in their professional employment. (Slater v. Baker, 2 Wilson, 359 ; Seare v. Prentice, 8 East. 347 ; 4 Id. 448.)
In the American States these professions have been generally blended, particularly in their early settlement; and medical bills are allowed to be sued for and recovered in our Courts. (Hewit v. Charier. 16 Pick. R. 353 ; Mays v. Hogan, 4 Tex. R. 26 ; Parsons on Con. 539.) Being thus entitled to a compensation, they are bound to the exercise of ordinary care, diligence and skill in what they professionally undertake to perform ; and if damage ensue from a want of this, they are liable to the party injured. (3 Black. Com., marg. page 122; Hewit v. Charier, 16 Pick. R. 354 ; Landon v. Humphrey, 9 Conn. R. 209 ; Howard v. Grover, 28 Maine R. 97.)
In 1837, the Congress of the Republic passed a law establishing a Board of Medical Censors, for the purpose of granting licenses to practicing physicians ; which act provided that only such licensed persons should be capable of collecting their medical bills. This Medical Board was not kept up, and the act *118thereby became inoperative and was formally repealed in 1848.
This leaves physicians without any legal establishment as a class, as they existed in England and in many of the American States; nor are they recognized as a class otherwise than indirectly; as by being exempt from serving on iuries, Ac. (Hart. Dig., Art. 1641.)
Then not only the practice of blending the various branches of the profession, but also the fact that they are not legally created as a class, make it consistent with principle to place physicians on the same footing with attorneys, factors, pilots, and other persons undertaking to perform services which require skill, for reward. Their employment, and their duty under it, are liable to be varied by innumerable circumstances of time, place, emergency and the like ; but ordinarily the rule, laid down above, would determine the limits of their responsibility. The care, diligence and skill required, relate to the professional duties, and not to nursing and providing necessaries and comforts.
The testimony shows that these negroes were taken sick in Matagorda county, with typhoid fever, and then measles upon that, and were'first attended to by Dr. Fisher, who is said to have pronounced it cholera. They were moved while sick to the McNeal place, when Dr. Gautier was called to see them ; and while he was attending on them they were moved to Hinckle’s place. The idea of their having some contagious disease caused them thus to be moved from place to place. The houses in which dhey were lodged were open, the weather was not good, they were not well provided with bedding and clothing, and were left in these outhouses mainly to themselves, apart from any white family to see that they were properly nursed and provided for; (the white family being sick at' another place at the same time.) It would have been rather a matter of astonishment if all these negroes had survived nder such circumstances, with the best medical ski 11 and pro*119fessional attention. The physician was not bound to nurse them, and provide for them. It was his business to instruct others how to do it.
The Court below charged the jury fully as to the degree of •skill necessary to be exercised by a physician, but refused to •charge any thing in reference to the degree of care and diligence which the law imposes on him. Skill, in its broadest •sense, might be understood to include the others ; but not necessarily, or even usually so. A man may be very skillful, without being very"diligent or careful. Yet skillful treatment as-a physician would usually be understood to include all these •qualities. A physician might prescribe with great skill, when he came to see his patient, but be negligent and irregular in coming, and might not be careful enough in giving directions as to the management of the case in his absence.
The evidence upon the subject of Dr. Gautier’s care and diligence was somewhat conflicting. It was stated by N. B. Gorsuch, that he came frequently and gave about the same attention ordinarily given by physicians. On the other hand, it was shewn that he only staid two hours at a time, and was not in the house much with the negroes when he came ; and Dr. •Chinn’s testimony shows that very great diligence and care were required of any one who would undertake to attend to them as a physician. However improbable it might appear to the Judge, that an impartial jury would, under all the circumstances, make the physician pay for the loss of these exposed and neglected negroes—neglected and exposed by the misfortune rather than the fault of the owner—it was the right of the party to have the law charged, in its full extent, so as to submit to the jury whether or not Dr. Gautier had used ordinary care and diligence, as well as skill in his treatment. This was a question Avhich arose upon his petition for his medical bill, as well as upon Graham’s plea of reconvention for damages. We think the Court erred in not giving such charge when requested so to do by appellant.
*120It may be well to remark in reference to another part of the charge of the Court, that the fact that a man is a physician of ordinary skill being proved,.does not raise a legal inference, as is supposed by the charge, that the particular services in any one case were skillfully rendered by him. It is a natural presumption not legal. It is evidence of that fact, and practically it may often be the only attainable evidence of it. But there is no rule of lato, giving it artificial weight as a legal presumption, or making it prima facie evidence. The question at issue was, the value of the services charged in the bill. Proof of his being a physician of ordinary skill will be an element in the evidence to establish the value charged, and it will ordinarily satisfy the mind of the value as alleged, if shewn to be the usual charges, unless there be something proved rebutting such presumption.
The duty and responsibility of a physician is well stated by a Judge in Pennsylvania: “ It is a rule of law, that a medical practitioner never insures the result, but simply engages that he possesses a reasonable degree of skill, such as is ordinarily possessed by a profession generally, and to exercise that skill with reasonable care and diligence; and, again, to exercise his best judgment, but is not responsible for a mistake of judgment.” That is, after he has, with reasonable care and diligence, exercised ordinary skill, he is not responsible for a mistake of judgment, or for the result if he should happen to be mistaken. Such are the rules applicable to the ordinary, implied undertaking of a physician. They may be varied by special circumstances or agreements.
The Court did not err in holding that the plaintiff was entitled to open and conclude the argument of the case. The admission of defendant was so qualified as to avoid admitting the plaintiff’s cause of action as set out in the petition, and without that he could not rightfully claim the opening and conclusion. Judgment is reversed and cause remanded.
Reversed and remanded.