The case of Spead versus Tomlinson, which has been pending for some time in the courts of New Hampshire, has just been decided by the Supreme Court,—the court of last resort,—in favor of the defendant, Rev. Irving C. Tomlinson. This case has been watched with much interest, because it has involved the legality of Christian Science practice in New Hampshire, and it has been a matter of considerable satisfaction to Christian Scientists to note that in each stage of the proceedings, the decisions have, sustained their right to practise their religion.
The opinion is quite long, and we cannot publish it in full at this time, but the following extracts will serve to show the general trend of the law as laid down by the court.
"There is no evidence from which it could be found that the plaintiff employed the defendant to advise her as 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 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 has 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 employed 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 it by the method he had agreed to employ. The test whether or not the defendant was negligent, 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 statements 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 all other evidence tending to prove 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, and it is clear she cannot prove that he failed to do what he ought to have done without showing what he actually did.
