I am unable to agree with ttie majority of the court with respect to the inferences to be drawn from the evidence herein, and to the • application of the adjudicated cases.
I am of opinion that the case falls within the rule, which I deem well sustained both on principle and by authority, that one who has met with an accident or becomes ill and through unconscious*701ness or otherwise is unable to act for himself, is liable on the theory of an implied contract for necessary medical aid and attendance, no matter by whom summoned, and when, as here, after regaining consciousness he knowingly voluntarily continues to receive and accept the professional services of the physician summoned, the reasonable value thereof may be recovered of him. (Cotnam v. Wisdom, 83 Ark. 601; 12 L. R. A. [N. S.] 1090 and note; Pray v. Stinson, 21 Me. 402; 30 Cyc. 1596, 1597. See, also, Meyer v. Knights of Pythias, 178 N. Y. 63, 67; MacGuire v. Hughes, 126 App. Div. 637; Van Gaasbeek v. United States Lace Curtain Mills, 132 id. 595 ; Crane v. Baudouine, 55 N. Y. 256; Sceva v. True, 53 N. H. 627; Raval v. Newman, 59 Ga. 403.)
It now appears that the defendant was not insane. The restraint to which he was subjected did not deprive him of volition to accept or. reject the plaintiff’s services, to which he at no time objected, and he did not request that his former physician be called. The fact that theretofore he had been attended by a physician of his own selection is, therefore, of no importance. He took advantage of the privilege afforded by the Code of Civil Procedure (§ 834) and obtained fillings of the court which precluded plaintiff from showing what he treated- him for. But for that it might have very clearly appeared that defendant well knew that plaintiff was not visiting him as an alienist, and, therefore, the argument that the appearance indicated to defendant that plaintiff was there to observe him as an expert is without weight. Moreover, the jury were justified in finding that defendant knew that plaintiff was visiting and treating him as a physician and that defendant, referring to. the professional' services for which recovery is sought, frequently admitted that plaintiff had saved his life and thanked him for it which showed conscious knowledge on his part of the rendition and acceptance of the services. ¡Neither the fact that plaintiff made an affidavit for use in the lunacy proceeding, nor that he was mistaken with respect to the seriousness of defendant’s mental condition, deprives him of the right to recover the fair value of the professional services rendered. -
Judgment and order reversed, new trial ordered, costs to appellant to abide event.