Charles E. Baird, by guardian, etc., Respondent, v. Moses P. Gillett, Appellant

Charles E. Baird, by guardian, etc., Respondent, v. Moses P. Gillett, Appellant. In an action against a physician for malpractice and neglect,—Held, that the admission of proof that defendant had not presented any bill or asked any pay for his services, was error. (Argued December 21, 1871; decided January 16, 1872.) Appeal from judgment of the General Term of the Supreme Court in the seventh judicial district, affirming a judgment in favor of plaintiff entered upon a verdict. This is an action for alleged malpractice and neglect on the part of the defendant as a physician. The plaintiff was born on the 9th day of August, 1867; the action was commenced in April, 1668, The gravamen of the action was neglecting to treat and improperly treating the eyes of the plaintiff, by reason of which he lost the sight of one and that of the other was injured. Upon the trial the father of plaintiff was sworn as a witness for him, and was asked the following question: “Has he (the defendant) ever called upon you for any pay for services in that matter?” Objected to by defendant’s counsel; objection overruled, and exception, etc. Answer. “ Ho, sir; he never has presented any bill or asked for any pay.” The jury rendered a verdict against the defendant for $2,000. W. F. Cogswell for appellant. Evidence that defendant had presented no bill was error, and the presumption is it worked injury. (Starbird v. Barrons, 43 N. Y., 200.) G. W. Ransom for respondent. [MAJORITY — Allen, J.] Allen, J. The question, whether the defendant had presented any bill, or asked for any pay for his services, was entirely foreign to the issue, and therefore objectionable. It did not legitimately prove, or tend to prove, either want of care or skill in the treatment of the plaintiff by the defendant. But the fact that for eighteen months, a physician had forborne to assert a claim for compensation for his attendance and treatment, might in an action for malpractice, and especially in a doubtful or balanced case, be urged with great force, as in the nature of an admission of neglect or want of skill; as evidence of a consciousness on the part of the physician that he was not entitled to pay for his services, and that they were worthless. It makes a collateral issue, upon which the defendant is called upon to give explanatory or contradictory evidence, and by which the jury may be embarrassed in their deliberations. The evidence was improper; and as the court cannot say that it might not have biased the jury and influenced the result, its admission, under objection, was érror, for which the judgment should be reversed. (Williams v. Fitch, 18 N. Y., 546.) If improper evidence be given upon the trial, although it be merely cumulative, it will be cause for a reversal. (Osgood v. Manhattan Company, 3 Cow., 612.) If the evidence could not possibly have injured the defendant, the error might be disregarded; but when illegal evidence is admitted, which bears in the least degree on the result, it is fatal. (Worrall v. Parmelee, 1 Comst., 519; Starbird v. Barrons, 43 N. Y., 200.) By admitting the evidence, under the objection of the defendant, the jury were authorized to regard it as competent and relevant to the issue in the action, and as tending, in a greater or less degree, to prove the cause of action. The judgment should be reversed, and a new trial granted; -Bests to abide the event. All concur, except Peckham, J., not voting. Judgment reversed.