On Motion for Rehearing.
Without attempting to enter into a discussion of what is fundamental error, we think it “clear, manifest to the understanding, plain, evident, obvious, appearing to the eye or mind,” that it is error to instruct a jury that a minor child, 11 years of age, can be operated upon by a surgeon, without the consent of the parents, if the child was taken to the surgeon’s office by an adult sister. The charge does not place immunity for the-physician on the ground of consent of the child itself, nor on the emergency of the occasion, but merely on the proposition that “the daughter of the plaintiff took the child to Dr. Moss for the purpose of being operated upon.” We hold that such an instruction is absolutely and fundamentally wrong. Such an error can be considered by an appellate court in the absence of a brief. The-*125■charge was assigned as error, although ap-pellees state that this court held that it would be considered, “even though not assigned as error.” The charge as given is not the law in any case, no matter what the facts might be, and this court rendered its ■decision on the broad proposition that the mere fact that á child of tender years is taken to a surgeon’s office by an elder sister, without the consent of the parents of the c^iild, will not justify an operation upon the child. We did not hold that the charge was •erroneous, as stated by appellees, because “a .minor, by reason of his minority, has no right to give his consent for needed medical ■attention, and that without having the consent of the parent.” No such points are pre-sented in the charge of the court.
We do not wish it understood, however, that this court has intimated an indorsement ■of the proposition that an infant of tender .years is given by law any authority or power ■to judge of the necessity of having a .dangerous operation performed upon its body without the consent of its parents. An operation performed upon an infant in case of an emergency, without the consent of the parents, cannot be justified on the ground of the consent of such infant, but upon the ground of the emergency. The physician in the case of an emergency, where the life of the infant is at stake, is justified in performing an operation without the consent of parent or guardian. not on the ground that the infant can •contract for necessaries, but upon the ground that the emergency exists, and the question ■of emergency would be one of fact to be ■considered by a jury. If, however, it could be held that an infant could contract for a •surgical operation, on the ground that it was necessary, it would always be a question of fact as to whether it was necessary, and that the parent or guardian had refused to have it done. The law does not give the girl un■der 15 the power to consent to the use of her person, and it would seem to be a dangerous proposition to authorize children of the age ■of the dead child to decide whether an operation is necessary, in defiance of the consent •of its parents. As before stated, however, the question of the operation being necessary, • or with the consent of the infant, was not an issue in the case. The charge exonerated the ■surgeon from all blame on the ground alone .that the infant went to his office in the company of a sister. Upon that issue alone it must be tested.
Appellees give a synopsis of the pleadings and state: “That the general denial put in .issue all of the allegations of plaintiffs’ petition cannot be denied, and therefore the •fact of plaintiffs giving their consent or of .authorizing any one to have the operation .performed was clearly put in issue.” That is undoubtedly true, but the court ignored the issue and instructed the jury, as a matter of law, that if the sister took the child to the office of appellees, the verdict must be in favor of the latter “notwithstanding there was no consent from the parents that the operation could be performed.” In that ■proposition lies the fundamental error, because it goes to the very foundation of the action. The pleadings did not justify any such charge, but it was directly .in the face of the issues raised therein. The consent of no one was required by the charge, neither the parents, the child, or the nurse, and yet this court is' asked to consider the pleadings, and not the evidence, and then presume that the charge is correct. It could not be under the issues made by the pleadings. When the facts are consulted the error is merely, intensified. There is not one word in the charge as to the mature daughter acting as the agent of the parents, and no' such issue was raised by the pleadings.
The case cited by appellees (State v. Housekeeper, 70 Md. 162, 16 Atl. 382, 2 L. R. A. 587, 14 Am. St. Rep. 340) was one in which an operation was performed upon a married woman for cancer of the breast, and the husband sued for damages because the operation for cancer was without his consent, although he had consented to an operation for tumor. He was present and assisted in preparing for the operation. The consent of the wife to the operation was deemed sufficient on the ground of pressing necessity. The court said: “Surely the law does not authorize the husband to say to his wife: ‘You shall die of the cancer; you cannot be cured, and a surgical operation, affording only temporary relief, will result in useless expense.’ The husband had no power to withhold from his wife the medical assistance which her case might require.” A married woman’s power over her person cannot be 'classed with that of an infant of tender years over her person; but, even in the case of a married woman, it appears from that ease there must be an emergency, and a failure upon the part of the husband to respond to the call of the emergency. Under article 4624, R. S. 1911, the wife is given authority to contract for necessaries furnished herself or children, and for all expenses incurred for the benefit of her separate property. The infant has no such statutory authority.
Undoubedly “if the evidence had shown that the daughter was intrusted with the care and custody of the child, with instructions to use her best judgment in doing what was necessary for the child’s health and benefit,” the charge would not have been “directly responsive to the pleadings and the evidence.” It is not pleaded that the elder daughter had “the care and custody of the child, with instructions to use her best judgment in doing what was necessary for the child’s health and benefit,” and the cause was not submitted upon any such theory. Such allegation, if supported by evidence, might have made the sister an agent of the parents, *126whose consent to the operation might have been their consent, but the question of agency of the sister and consent of the parents was brushed aside by the charge, and justification of the physicians was rested on the naked fact that the child was taken to the office by the sister. To speculate upon the theory that the charge might have been directly responsive to the evidence would be no more justifiable than to imagine that the child had no operation performed upon it at all and was still living.
Appellees object to the court stating that the operation was performed at the instance and request of the sister, and the court might, with propriety, withdraw that statement, confine itself to the pleadings, and state that the sister was merely present when the operation, was performed.
It was alleged in the petition “that no person whosoever had any authority to permit defendants to perform any operation whatever upon their child, and plaintiff nor his wife had any knowledge whatever that any such operation was contemplated by any one, especially by defendants, or would take place at any time.” No such issue was presented to the jury.
The motion is overruled.