1. There was no evidence from which it could be found that the plaintiff employed the defendant to advise her as *Page 58 to whether or not Christian Science could be successfully employed in the treatment of appendicitis, or to do anything except to treat her by that method. Under these circumstances, if she could legally employ him to give her such treatment, the duty the law imposed on him for her benefit was that of treating her as the ordinary man who treats the disease in that way would have done; for when persons are brought together by virtue of a contract, as doctor and patient, or lawyer and client, the duty the law imposes, on the doctor for the benefit of his patient, and on the lawyer for the benefit of his client, and in general on the person who undertakes to do anything for the benefit of his employer, is that of using ordinary care to do what he has agreed to do in the way he agreed to do it. The reason for this is obvious. If there are different legal methods of treating a disease, or of doing any other work, the employer has the right to decide which method shall be used in his case. When a person has contracted to do a piece of work in a particular way, he is legally bound to do it in that way; so the duty the law imposes on him for his employer's benefit is that of using ordinary care in doing the work by the agreed method.
The test of the defendant's negligence is whether in his treatment of the plaintiff he failed to do anything which the ordinary man who treats appendicitis by Christian Science methods would have done. Evidence to be relevant to that issue must tend to, prove that he did something which such a man would not have done. The plaintiff's claim, that the defendant's statement that he could and would cure her is such evidence, cannot be sustained; for it is not a matter of common knowledge that Christian Science healers are not accustomed to encourage their patients by assuring them they can and will cure them, nor was there any evidence that such was not the fact. Neither is it enough to entitle the plaintiff to go to the jury, in the absence of other evidence tending to prove that the defendant was negligent, to show that a relation of trust existed between the parties. The fact that he was her pastor and physician, at the time he gave her the treatment, has no tendency to prove how he treated her. It is clear she cannot prove that he failed to do what he ought to have done, without showing what he actually did.
2. By "public policy" is intended the policy of the state as evidenced by its laws. When the issue is its policy in respect to any question, the only matters which can be considered are its constitution and statutes and the provisions of the common law as evidenced by the decisions of the courts; for the common law, modified by the constitution and statutes of the state, is the law of the state. Vidal v. Girard, 2 How. 127, 197; Hollis v. Seminary, *Page 59 95 N.Y. 166, 171; People v. Hawkins, 157 N.Y. 1, 12; Consumers' Oil Co. v. Nunnemaker, 142 Ind. 560, — 51 Am. St. Rep. 193, 196; Richardson v. Mellish, 2 Bing. 229.
Since nothing is opposed to public policy which is not forbidden by some provision of law, the contention that it would be contrary to sound public policy to permit the defendant to escape without paying damages must mean that there is some provision of our constitution, or statutes, or of the common law, which made it illegal for the defendant to rely solely on prayer to heal the plaintiff when he knew she had chronic appendicitis, and which gives her an action to recover all the damages she sustained because of such reliance. The court are not authorized to allow an action against the defendant, even if they think he ought to have known that Christian Science must fail when applied to the treatment of chronic appendicitis, unless there is a general rule of law which gives such an action.
If the plaintiff is to recover on the ground of public policy, she must establish (1) that it was illegal for the defendant to give her such treatment, (2) that the duty of not giving it was imposed on him for her benefit, and (3) that no illegal act of hers contributed to cause her injuries. It is the general rule that the plaintiff in an action sounding in negligence must show that the defendant failed to perform a duty owed him, and that his own failure to perform a duty owed the defendant did not contribute to cause his injury; in other words, he must show the defendant's fault and his own freedom from fault. Assuming (without deciding) that such treatment is forbidden by the provisions of section 8, chapter 278, Public Statutes, which makes the killing of human being by culpable negligence manslaughter, or by the provision of the common law which makes it unlawful for any one to do what is liable to endanger the life or health of others (Goodyear v. Brown, 155 Pa. St. 514, — 35 Am. St. Rep. 903, 907), and that the duty of not doing what is forbidden by either provision was imposed on the defendant for the plaintiff's benefit, the question still remains whether the plaintiff's own wrong contributed to cause her injuries. It is elementary that if it was illegal for the defendant to treat the plaintiff as he did, it was equally illegal for her either knowingly to employ him to give her such treatment, or to consent to be so treated. So far as the evidence goes, her knowledge in respect to the disease from which she was suffering and the treatment prescribed for it by regular physicians in good standing, and in respect to the way the defendant proposed to treat her, was at least equal to his.
It does not follow, as a matter of law, from the fact that the plaintiff cannot recover in this action on the count in negligence, *Page 60 that the defendant would not have been guilty of manslaughter if the plaintiff had died from the effects of his treatment. If he had been indicted under the provisions of section 8, chapter 278, Public Statutes, the state would base its right of action on his failure to perform a duty the law imposed on him for its benefit. The state has a direct interest in the lives and health of all its citizens. Every one who has to do with the lives and health of others not only owes the individuals with whom he comes in contact a legal duty, but also owes the state the duty of using ordinary care to do nothing which will endanger their lives or health. In an action by the state, it would be no answer to show that if the deceased had used ordinary care to avoid being injured he would not have died; for the defendant is not indicted for his failure to perform a duty the law imposed on him for the deceased's benefit, but for his failure to perform one imposed on him for the benefit of the state. It is no more an answer in such an action to show that, notwithstanding the defendant's fault, death would not have resulted if the deceased had used ordinary care to avoid being injured, than it would be in an action against one of two joint tort-feasors to show that, notwithstanding the defendant's negligence, the plaintiff would not have been injured if the other had done his duty. State v. Center, 35 Vt. 378; Commonwealth v. Collberg, 119 Mass. 350; Commonwealth v. Pierce, 138 Mass. 165; State v. Hardister, 38 Ark. 605, — 42 Am. Rep. 5; Rex v. Walker, 1 C. P. 320; Rex v. Long, 4 C. P. 423. The conclusion that the plaintiff's intelligent and voluntary consent to follow the defendant's advice and abide the result of his prayers is an answer to her claim for damages on the count in negligence, previously announced, is reaffirmed.
3. The sufficiency of the defendant's statement, as evidence of an unperformed contract to cure the plaintiff, is not before the court. Hence, since she cannot recover on the count for negligence, the only question remaining is whether she can recover on the count in deceit, for the defendant's statement that he could and would cure her. In such an action the plaintiff must allege and prove, not only that the representation was false, but also that it was made with a fraudulent intent. Lord v. Colley,6 N.H. 99, 102; Hoitt v. Holcomb, 23 N.H. 535, 552; Bedell v. Stevens,28 N.H. 118, 124; Mahurin v. Harding, 28 N.H. 128, 131, 132; Gage v. Gage,29 N.H. 533, 543; Hanson v. Edgerly, 29 N.H. 343, 357; Page v. Parker,40 N.H. 47, 69; Pettigrew v. Chellis, 41 N.H. 95, 99; Griswold v. Sabin,51 N.H. 167, 170; Springfield v. Drake, 58 N.H. 19; Messer v. Smith,59 N.H. 41; Rowell v. Chase, 61 N.H. 135; Stewart v. Stearns, 63 N.H. 99; Ashuelot Bank v. Albee, 63 N.H. 152; Syracuse Knitting Co. v. *Page 61 Blanchard, 69 N.H. 447; Cross v. Peters, 1 Me. 376, — 10 Am. Dec. 78, 85; Nash v. Company, 163 Mass. 574; Upton v. Vail, 6 Johns. 181; Kountze v. Kennedy, 147 N.Y. 124; Cowley v. Smyth, 46 N. J. Law 380, — 50 Am. Rep. 432; Lord v. Goddard, 13 How. 198; Pasley v. Freeman, 3 D. E. 51; Haycraft v. Creasy, 2 East 92; Derry v. Peek, 14 App. Cas. 337.
The intent with which an act is done is to be proved, like other facts, by the weight of competent testimony; but when the representation relates to a matter which is susceptible of personal knowledge, and is made as of the maker's own knowledge, the jury may find from the fact that it is false, that it was made with a fraudulent intent. A positive statement of that kind not only includes a representation that the fact is as stated, but also the further representation that the maker knows it to be so. Whenever a person makes such a statement, the jury may find from the fact that it is untrue, that it was made with a fraudulent intent. If the maker was acquainted with the facts, he knew the statement to be false when he made it. If he was unacquainted with the facts, he knew the representation that he was acquainted with them to be false. In the one case the fraud consists in stating what one knows to be untrue; in the other, in representing that he has knowledge upon a subject in respect to which he is ignorant. It can be found from such evidence that the representation was made with fraudulent intent if it was made to induce another to act; for a representation which the maker knows is untrue is made with a fraudulent intent when it is made to induce another to change his position. Syracuse Knitting Co. Blanchard, 69 N.H. 447, 449; Pasley v. Freeman, 3 D. E. 51.
When a representation relates to a matter not susceptible of personal knowledge, it cannot be considered as anything more than strong expression of opinion, notwithstanding it is made positively and as of the maker's own knowledge. The mere fact that it is stated positively cannot make it a statement of fact. The most any one can do as to such matters is to express his opinion. It cannot be found, from the single fact that such a statement is untrue, that it was made with fraudulent intent; there must also be evidence that the maker knew it was in some respect untrue, before there is anything to submit to the jury. Page v. Bent, 2 Met. 371; Nash v. Company,163 Mass. 574; Marsh v. Falker, 40 N.Y. 562; Kountze v. Kennedy,147 N. Y. 124; Cowley v. Smyth, 46 N. J. Law 380; Haycraft v. Creasy, 2 East 92.
It follows that a representation cannot be the foundation of an action of deceit unless it contains a statement of fact in respect to which the maker could have personal knowledge; for unless it does, it contains nothing in relation to which he could state what *Page 62 he actually knew to be untrue. When a person gives his opinion, the statement that it is his opinion includes one that he believes what he has said to be the truth; in other words, that what he has stated as his opinion is his opinion. Every expression of opinion contains at least that one statement of fact; consequently, a person can state what he knows to be false, for the purpose of inducing another to change his position, when he pretends to express his opinion as to any matter, as well as when he pretends to state facts in relation to it. In such a case the falsity of the statement consists in stating something as his opinion which is not his opinion.
If it is conceded that an action of deceit may be founded upon a mere expression of opinion (a question which it is unnecessary to decide in this case and upon which no opinion is expressed), it will be necessary, when the opinion relates to a matter upon which no one can have personal knowledge, to introduce some evidence from which it can be found that the person who gave the opinion did not in fact entertain it. The statement that it was his opinion would be the only statement of fact the opinion contained, and the only matter in respect to which he could state what he knew to be false. It cannot be found that he did not entertain such an opinion, from the mere fact that the jury are convinced that it is unsound. The reason for this is obvious. It is a matter of common knowledge that men frequently change their opinions. Few can recall the views held at different periods in life, in reference any matter incapable of exact proof, without a feeling of surprise at the number of times they have changed their minds in regard to it. Neither is the seeming absurdity of a belief alone evidence from which it can be found that a person does not entertain it. We all know that honest men frequently entertain opinions which seem utterly absurd to the majority of their fellowmen. Common experience teaches that men ordinarily tell the truth, even when they say they believe things which seem absurd; so the fact that a person states something which appears absurd, even incapable of belief, is at least as consistent with the view that it is his belief, as it is with the view that he is lying. Hence the fact of its seeming absurdity, in and of itself, has no tendency to prove he does not entertain such a belief. Darling v. Westmoreland, 52 N.H. 401; State v. Lapage, 57 N.H. 245; Lawrence v. Tennant, 64 N.H. 532, 540; Nutter v. Tucker, 67 N.H. 185; Deschenes v. Railroad, 69 N.H. 285. We have only to consider common superstitions to be convinced of the falsity of any other view. For example, it is not unusual to hear persons unskilled in meteorology say when they see the new moon that we shall have wet month or a dry month, according to the moon's position in *Page 63 relation to the earth, or that we shall have unseasonable weather during the year if the weather is unseasonable at Christmas. Notwithstanding the jury could find such statements are absurd, no would think the jury could infer from the single fact that they were convinced of their absurdity that such persons in making such statements were lying; but if there was evidence that the persons making these statements were educated meteorologists, or that they believed weather conditions to be due to other causes, and it appeared that these statements were made with the intent that they should be acted upon, the jury could find they were not made in good faith.
Assuming that the defendant's statement, that he could and would cure the plaintiff, may be the foundation of an action of deceit, her case fails, for there was no evidence that he made it with a fraudulent intent. Although a jury could find from their knowledge of human affairs, their own experience, and the evidence in the case, that the defendant's statement that he could cure the plaintiff without the aid of any material agency, when he knew she had appendicitis, was untrue, it does not follow that they could infer, from the single fact that they were convinced of its untruth, that the defendant did not believe he could induce God to heal her when he made the statement. The evidence tended to prove that both parties believed there was no such thing as physical pain, and that those sufficiently proficient in the metaphysics of Christian Science could induce God to heal all manner of diseases through the agency of prayer. In short, the healing of the prayers of the faithful was a part of their religious belief. It is a matter of common knowledge that honest men not only have in the past, but do now, entertain religious beliefs which appear to the great majority of their fellow-men both unsound and incapable of belief. So even if a relation of trust existed between the parties when the plaintiff employed the defendant to give her Christian Science treatment, a jury could not find, from the single fact that they were convinced the religious views both parties professed to entertain were absurd, that the defendant did not entertain them. There was no evidence that the defendant had any knowledge of physiology or medicine, or, aside from the plaintiff's statement to him of the fact (if it were a fact), that the plaintiff could have relief only through a surgical operation. If, in the absence of any evidence, such knowledge on his part could be inferred as part of the general knowledge of mankind upon the subject, such inference cannot be made in this case in the face of the direct and uncontradicted evidence of his belief as to the most effectual remedy for the relief of physical pain. Neither was there any evidence that he did not believe he could induce God to *Page 64 heal her at the time he made the statement. The evidence tended to show that a very large number of people believe, in substance and effect, that Christian Science is the most effective curative agency known, and that it may be successfully applied to the treatment of all manner of diseases which afflict mankind. The sincerity with which this belief is held was conceded by the plaintiff in her testimony. She offered no evidence tending to show that the defendant did not in all sincerity entertain this belief.
If she had offered evidence that Christian Science treatment had never been successfully applied, or that no attempt had ever been made to apply it, to the treatment of chronic appendicitis, or that the defendant had never applied such treatment to any disease or to that disease with success, or had never known of such a case being successfully so treated, there would have been evidence of negligence in the defendant's attempt to treat her in the way he did and in the advice which he gave her, or it could be found that he intended to deceive her; for there would then have been direct evidence that he told her as a fact what he did not know to be true.
It is clear that the plaintiff cannot stand upon the universal experience of mankind, to be found by the jury from their knowledge of human affairs, when her undisputed evidence and her own admissions tend to establish that a very large number of people honestly entertain the views which she contends are unsound and absurd. Whether the defendant exercised ordinary care and was honest, were questions vital to the plaintiff's case. Her admission of his sincerity does not tend to prove either proposition. Neither can the plaintiff justly complain that the defendant is not compelled to prove as matter of defence the existence of a system of Christian Science treatment applicable to her case, when her own evidence admits the existence of such a system, and the belief in and practice of it in all diseases by a large number of people. The plaintiff fails because of the insufficiency of her evidence to prove the facts necessary to maintain her case.
Exceptions overruled.
CHASE and WALKER, JJ., did not sit: PARSONS, C. J., and BINGHAM, J., concurred. *Page 65