Venereal Disease. This may be the basis of a charge of cruelty, and may be evidence of adultery if fastened upon the guilty party too long a time after the beginning of the marriage to be the result of intercourse before marriage.

Access, Birth of Child (As stated elsewhere more fully under Birth and Legitimacy).—A child who could have been born within a legal time after access is presumed to be the child of the husband; but if without such time, is illegitimate and is proof positive of adultery and a cause for divorce.

Unchastity. Concealed antenuptial unchastity, unless pregnancy result and exist at marriage, is almost without exception insufficient cause for annulment. The rule here on public grounds is, caveat emptor. Having been, unknown to husband, a prostitute before marriage is a ground, however, in some jurisdictions, as in Virginia and West Virginia.

Access. In general this equals cohabitation in contemplation of law. To all intents and purposes they are synonyms. This is particularly important in questions of condonation. The presumption is but slightly stronger in a case where spouses stay all night in a room where there is but one bed, than in such a well-contrasted case where they are merely alone for a few minutes in the same room by day, or have privacy for a short time in a separate domicile (private house or apartment), using a suite of rooms and servants being in such domicile.

Miscegenation.-Before leaving the topic of marriage and divorce, the subject of miscegenation should not be omitted. In several of the states, as already stated, marriages between white persons and negroes or Indians are strictly forbidden under penalty, the marriage being void or voidable according to the jurisdiction. The ground for this legislation is the public health. It is based upon physiologic facts and theories, and the general belief that the natural law of selection, " each after its own kind," applies to races of men as it does to animals. Hybrid or cross breeds are regarded as inferior to the pure blood of either race. A famous southern Methodist bishop (colored), however, shows, by appeal to facts and figures, that the African race on this continent is becoming rapidly absorbed by and into the Caucasian or white race by irregular unions without any appreciable deterioration. From this it appears that the apprehension of demoralization, etc., is not well founded so far as miscegenation between negroes and whites is concerned. Still, where such prohibition is in vogue, there should be a severe penalty for those persons who deliberately and illegally form a union to bring into the world children whom they know can never become legitimate. The innocent little sufferers of such marriages are chiefly to be considered, and the law aims at prevention by inflicting heavy penalties; while by merely declaring the marriage void, the greatest punishment falls directly upon the children, and not upon the parties themselves.

Mental Incapacity. This is sometimes a ground for matrimonial actions, annulment, divorce, or separation, according to the jurisdiction, as has been noted, and is also a defense to civil and criminal charges

of adultery. As a cause of such actions the insanity must, in general, exist at the time of making the marriage contract; incurable chronic mania or dementia for ten years-i. e., after marriage-is, however, a cause for divorce in the state of Washington; and insanity after marriage, for limited divorce or separation in Arkansas. The insanity must be concealed from the complainant, and the latter must not delay his application for a remedy or act so as to ratify the marriage. Antenuptial temporary insanity is, as a rule, insufficient. Mental incapacity as a defense to charges of adultery is one of the evidences of lack of intent. without which a case of this offense cannot be made out.

Logically, incapacity at the time of marriage should be a ground for a suit to annul and not for divorce. Insanity as a defense in adultery became an important question in the celebrated Mordaunt case, in which King Edward VII. was named as corespondent.' In the case of an insane defendant the consequences are sufficiently terrible, whether testimony of such defendant's guilt is admitted or refused.

1 See Ordman's Judicial Aspects of Insanity, p. 339.

MALPRACTICE.

MALPRACTICE may be defined to be the failure, to the damage of the patient, on the part of a physician or surgeon to exercise that degree of care, skill, diligence, and judgment that the law requires in the treatment of such patient.

Malpractice may be considered under two heads: civil and criminal. 1. Civil Malpractice.-The gist of an action for civil malpractice is negligence. The rules of law governing this important subject are well stated by Judge Cooley in his work on Torts. We cannot do better than quote his language:

"As the promise is not different in the case of the physician and surgeon from what it is in the case of an attorney, solicitor, and proctor, one general rule may be given which will apply to all.

"The English authorities are, perhaps, somewhat more indulgent to the faults and mistakes of professional men than are those of this country. Thus, Lord Campbell, with the full concurrence of his associates in the House of Lords, declared that in order to maintain an action against one's legal adviser, it was necessary, most undoubtedly, that the professional adviser should be guilty of some misconduct, some fraudulent proceeding, or should be chargeable with gross negligence or with gross ignorance. It is only upon one or the other of these grounds that the client can maintain an action against the professional adviser.'

"On the other hand, the rule is laid down in Pennsylvania that the professional man must bring to the practice of his profession a degree of skill and diligence such as those thoroughly educated in his profession ordinarily employ.' This is a severe rule, and fixes a standard of professional skill and attainments which, in the newer portions of the country, would be quite out of the question. In New Hampshire the undertaking of the practitioner has been stated in the following language: By our law a person who offers his services to the community generally, or to any individual, for employment in any professional capacity as a person of skill, contracts with his employer: 1. That he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by the professors of the same art or science, and which is ordinarily regarded by the community and by those conversant with that employment as necessary and sufficient to qualify him to engage in such business. 2. That he will use reasonable and ordinary care and diligence in the exertion of his skill and the application of his knowledge to accomplish the purpose for which he is employed. He does not undertake for extraordinary care or extraordinary diligence, any

more than he does for uncommon skill. 3. In stipulating to exert his skill and apply his diligence and care, the medical and other professional men contract to use their best judgment.' This is believed to be an accurate statement of the implied promise. The practitioner must possess at least the average degree of learning and skill in his profession in that part of the country in which his services are offered to the public; and if he exercises that learning and skill with reasonable care and fidelity, he discharges his legal duty."

A different rule has been at times laid down. Thus, in McCandless vs. MeWha, 22 Penn. St., 261, the rule was stated to be that such skill and diligence must be exercised "as thoroughly educated surgeons ordinarily employ"; and in Holtzman es. Hoy, 118 Ill., 534, Mr. Justice Mulkey states that the duty of the defendant "was to bring to the case in hand that degree of knowledge, skill, and care which a good physician and surgeon would bring to a similar case under like circumstances." The rule first above stated is, however, believed to be the correct rule.

Negligence is never presumed, but must be proved. In an action for malpractice the burden of the proof is, therefore, upon the plaintiff' to show that the defendant failed to exercise due skill, care, and diligence, and that the damage to plaintiff was the result thereof. The professional skill of the defendant is the issue in such a case; but the only way of showing a lack of it is by proving that he did not exercise it in the treatment of the plaintiff. The possession or want of proper skill cannot be proved by general reputation.

The mere fact that the defendant has failed to cure the patient raises no presumption of the want of proper care, skill, and diligence; and the fact that a fractured limb is shorter after the recovery of the patient than it was before the injury is not even prima facie evidence of a want of skill on the part of the attending surgeon.

One who is not a regular physician, but who holds himself out as such, is bound to exercise the skill and diligence usually possessed by regular physicians in the treatment of such diseases.

A physician possessing a reasonable degree of learning and skill, and exercising, according to his best judgment, reasonable and ordinary care and diligence, is not liable for a mere error of judgment in advising a particular remedy about which there is a difference of opinion. To hold a physician liable for every error of judgment made in the ordinary course of practice would be to debar him from the exercise of his profession and to deprive the public of the benefit of valuable service. The law does not require infallibility. A medical man cannot, as a rule, be held guilty of negligence for not employing any particular remedy, since, as a rule, there is never any one specific remedy in the use of which all authorities are agreed. If it could be shown, however, that all authorities agreed that a particular drug should be used in a particular case, as, for example, a certain antidote in a case of poisoning, the failure to employ such specific would probably constitute action

able negligence.

There is no implied warrant from the contract of employment that

a cure will be effected. It is competent, however, for a physician to contract, if he sees fit to do so, that if there is no cure there shall be no pay.

A physician may decline a case, but having once undertaken it, he must continue his services, even if gratuitous, until a reasonable time has been given the patient to procure another physician; where his services are not gratuitous he has no right to desert a patient without reasonable cause before the end of the illness he has undertaken to treat.

As respects voluntary services, Judge Cooley lays down the rule thus: "Where friends and acquaintances are accustomed to give, and do give, to each other voluntary services without expectation of reward, either because other assistance cannot be procured, or because the means of parties needing help will not enable them to engage such as may be within reach, the law will not imply an undertaking for skill, even when the services are such as professional men alone are usually expected to render. And where there is no undertaking for skill, the want of it can create no liability. So the 'street opinion' of an attorney, given in answer to a casual inquiry by one to whom he holds no professional relation, cannot, however erroneous, render him liable. But when one holds himself out to the public as having professional skill, and offers his services to those who accept them on that supposition, he is responsible for want of the skill he pretends to, even when his services are rendered gratuitously." Under the circumstances first above stated the one who undertakes the treatment of a patient, either voluntarily or upon request, is liable only for gross negligence; but if by forcing himself into a case he excludes a competent physician, he is liable for slight negligence or for lack of the skill and diligence of the specialist. In general it may be said that the liability of one rendering medical services is measured by the amount of skill he undertakes to exercise; and, as we have seen, the matter of compensation is immaterial.

A physician must always use his best judgment; and while he is not responsible for mere errors of judgment or mere mistakes in matters of reasonable doubt and uncertainty, if the error of judgment is so gross as to be inconsistent with the use of the degree of skill required by the law, he will be liable to an action. Where errors of judgment result from the want of ordinary care and skill, responsibility attaches, however carefully the judgment is exercised. In exercising his best judgment the physician is required only to anticipate the nature and probable consequences of his treatment. It has been held that he cannot be held responsible for the disastrous effect resulting from administering chloroform as an anesthetic to a patient of a peculiar temperament where such peculiarity was unknown to him. Its administration, however, without a previous careful physical examination of the patient, or its administration by a dentist without the assistance of a competent physician, and to a patient in an upright position, seems clearly culpable. Common prudence would also require that neither it nor any other anesthetic should be administered without the aid of a competent physician.