Cotnam v. Wisdom (1907)


– Mr. Harrison was thrown from a bus and died.
– Before he died, Cotnam, a stranger, performed surgery on him on sight. No one told him to do so…it was his own will.
– Even though it was kind and merciful of the appellee, it is an implied contract by law.
o Appellant states that it’s a new rule of law, even though he is wrong in this stance….an “implied contract” has been around for a long time.
– D states that it would be improper to say there was a contract, cause there was clearly no meeting of the minds, or anything written or verbal communication.

Procedural History

– Supreme Court of Arkansas
– Judgment for plaintiffs, defendant appealed. Reversed and remanded for judgment.


– Were the jury instructions wrong when stating, “that in determining what was a reasonable charges they could consider the ability to pay of the person operated on?”
– In assumpsit, for necessaries furnished to him in good faith while in that unfortunate and helpless condition.


– Yes, the jury instructions were wrong.


– Based upon prior cases, it is not sufficient to have the jury instructed upon the injured person’s ability to pay of the person operated upon.


– A surgeon is entitled to fair compensation for his time, service and skill.
– There was an implied contract.
– It is no different than a nurse tending to a drunkard or an infant…At the time the services were rendered, the sick person would be unable to negotiate a price.
– Based upon restatement 370…it is a reasonable value to have conferred upon for the doctor’s services.
– It is usually gratuitous to due such good deeds, but when they are excessive AND burdensome they usually give restitution.
– Reversed and remanded for judgment.


Webb v. McGowan
Feige v. Boehem
Bailey v. West – unjust enrichment.

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