Thomas

Plaintiff, a physician and surgeon, sues in his own behalf and as assignee of H. E. Southworth, also a physician and surgeon, to recover for services rendered in performing, at the special instance and request of defendant, a surgical operation upon Henry Caystile, brother in law of defendant.

Judgment went for plaintiff, from which, and an order denying his motion for a new trial, defendant appeals.

The appeal may be disposed of by a consideration of the evidence in support of the finding, “that on or about the 7th day of April, 1913, the plaintiff herein, C. P. Thomas, and the said H. E. Southworth, at the special instance and request of the defendant herein, F. L. Boruff, performed professional services for one Henry Caystile, which said services were and are of the reasonable value of $500, which the defendant herein undertook, promised and agreed to pay for. ’ ’

The evidence tends to prove that while Dr. Southworth had theretofore treated Mr, Caystile, he was not under employ ment by him at the time the operation was performed; that defendant asked him to perform it, and the defendant, upon being told by Southworth that the latter had spoken to Dr. Thomas regarding the…