The complaint substantially followed the language of the claim except that the words "in respect" are inserted before the words "to said daughter," so that while the complaint alleges the rendition of medical services to the daughter, the complaint refers to said medical services as rendered "with respect to said daughter." The rendition of the services sued for is not questioned. The question is whether or not the decedent was liable at all for the services so rendered. The facts in the main are undisputed. Frances S. Howard was thought to be so insane as to be dangerous and on January 7, 1915, Leon Morris, an attorney at law, representing a brother of Frances S. Howard, Teddy Howard, who was at that time fatally injured, and to protect the brother, swore to a complaint charging Frances S. Howard with being an insane person. She was arrested on that charge and while awaiting trial placed in a sanatorium conducted by Doctor Bering. The next day, January 8th, owing to the critical condition of Frances S. Howard, who was unconscious, Doctor Bering telephoned the plaintiff, an alienist, to attend her. Her mother, who was then in the east, arrived in San Francisco January 18, 1915. The plaintiff charges $379.50 for the services rendered by him to the daughter before the mother arrived in San Francisco. He bases his claim against the mother upon a conversation he held with her immediately upon her arrival while she was ill in bed in the Fairmont Hotel. As he was the sole witness who testified to this conversation we will first dispose of the appellant's objection to the competency of the plaintiff to testify against the defendant executor. The appellant objected to the deposition of the plaintiff on the ground that plaintiff was incompetent as a witness. [1] Under the provisions of section 1880, subdivision 3, of the Code of Civil Procedure, the plaintiff was an incompetent witness against the executor. This objection to the incompetency of the doctor could be waived (Kinley v. Largent, 187 Cal. 71 [200 Pac. 937]), and the plaintiff relies solely upon such a waiver. The administrator took the testimony of the plaintiff by a deposition, but upon the trial declined to introduce the deposition and objected to the respondent introducing it on his own behalf. The district court of appeal held that by taking the deposition of the respondent, the administrator made him a witness and thereby waived the objection of

incompetency. The petition to transfer the case to this court was granted because of a doubt as to the correctness of this ruling for the reason that section 2032 of the Code of Civil Procedure, under which the deposition was taken, expressly provided that although the deposition might be used by either party and thus become the evidence of the party adducing it, its introduction in evidence is "subject to all legal exceptions." If the phrase "all legal exceptions" is broad enough to include the question of the competency of the witness it is evident that upon the tender of the deposition in evidence the objection might be successfully interposed by the executor (Cudlip v. New York Evening Journal Pub. Co., 180 N. Y. 85 [72 N. E. 925]; Bambauer v. Schleider, 176 App. Div. 562 [163 N. Y. Supp. 186]).

After an investigation of the authorities we are satisfied that the ruling of the district court of appeal was correct. The phrase "subject to all legal exceptions" is one contained in the Practice Act with relation to the admissibility of depositions (secs. 430, 431, Practice Act, Stats. 1851, p. 119). It was held in Turner v. McIlhaney, 8 Cal. 575, that by taking the deposition of a witness otherwise incompetent because of interest, the objection was waived, and that the other party could introduce that deposition on his own behalf. The court in that connection said: "We think the intention of this section is that which its language plainly expresses. The defendant had the right to read the deposition. If it were otherwise, and a party should be allowed to take the deposition of any one or more of the adverse parties, and read, if it suited him-and if it did not, then to exclude it from the other side-the result would be, that a party, plaintiff or defendant, could always be fishing for evidence from adverse parties, without incurring any responsibility or danger on his part. The party who calls upon an adverse party to testify, makes him a witness. By making him a witness, he waives his incompetency to be heard for himself, or for his codefendant, or coplaintiff."

Similarly, in Jones v. Love, 9 Cal. 68, it was held that the objections to the competency of a witness based upon interest must be taken at the time of the taking of the deposition or otherwise waived. The same rule was followed in Brooks v. Crosby, 22 Cal. 42. It follows that the language of section 2032 of the Code of Civil Procedure, by which the

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deposition is admissible subject to "all legal exceptions,' does not authorize the competency of the witness to be questioned where he has been examined by deposition by the party opposing the introduction of the deposition. The supreme court of the state of New York has held that the objection to the competency of the witness as against an estate was not waived by taking the deposition (Cudlip v. New York Evening Journal Pub. Co., supra), but this was because of the statute of New York which expressly reserves the objection of competency to the time of trial. In Missouri, Tennessee, and Oklahoma it is held that the taking of the deposition waives the objection to the competency of the witness to testify against the estate (Ess v. Griffith, 139 Mo. 322 [40 S. W. 930]; Borgess Inv. Co. v. Vette, 142 Mo. 560 [64 Am. St. Rep. 567, 44 S. W. 754]; Rice v. Waddill, 168 Mo. 99 [67 S. W. 605]; Thomas v. Irvin, 90 Tenn. 512 [16 S. W. 1045]; Percy v. Miller, 115 Wash. 440 [197 Pac. 638].) The deposition was properly admitted in evidence.

The plaintiff testified in this action after the mother's death as follows concerning the conversation held with her: ". . . Mrs. Howard had me explain the condition of her daughter, the situation, what had been done, what was necessary to be done. This conference was quite prolonged, a couple of hours I saw her, and in expressing her appreciation and approval of my efforts and my advice and my opinion of her daughter's case, she assured me in words and in manner to go right ahead and give all of the services, be unsparing in my time in looking out for the daughter, that it was very necessary for her to be in the hands of someone competent to understand the condition, that I would be adequately compensated for my services."

Plaintiff relies upon this statement of the mother to establish his right to recover for the services already rendered by him in caring for the daughter, and those subsequently rendered in caring for her, and also as establishing a contract for the medical testimony of plaintiff as an expert given in the guardianship and in the insanity proceedings. for which he charges about $899.50 as a reasonable fee.

Notwithstanding this alleged contract of employment, the plaintiff continued to make the charges upon his books against the daughter and subsequently brought suit against

the daughter for the full amount of the claim, alleging in that action that the services were performed at the special instance and request of the daughter. The respondent failed to recover in his suit against the daughter, except for the services rendered when she was unconscious, and thereafter filed his claim against the estate of the mother and brought this action.

As supplementing the statement of the mother the plaintiff relies upon certain transactions had with others, to establish her liability, and we will consider these matters before further considering the effect of the mother's statement. During the pendency of the guardianship and insanity proceedings, the former having been instituted by relatives of the daughter in accordance with the advice of the plaintiff, the mother was represented in said proceedings by an attorney and the plaintiff relies somewhat upon his dealings with this attorney to support his contention that there was a contract of employment between himself and the mother. The plaintiff also testified and relies upon the fact that before the mother arrived in California a telegram was received from her and read to him by the daughter's attorney. The plaintiff's testimony in that regard is as follows: That after he had rendered emergency services to the unconscious daughter he met Mr. Halsey Rixford, representing himself as the personal attorney of Miss Frances Howard, who said "that the mother of the patient was ill in the East, that he had a telegram-no, had telegraphedand had instructions from the relatives, and to employ the services in the interest and for Miss Frances Howard. Later on I saw a telegram, the contents of which I cannot recall, signed either by the mother or the brother-in-law, Mr. Whitell, stating that they were on the way out, and to arrange the matters in regard to the daughter-the only other relative here was her injured brother, a patient at the Adler Sanatarium, Mr. Teddy Howard, hurt in an elevator falling...". Again he said: "It [the telegram] stated that the mother and son-in-law were on the way out and to go ahead and take care of the daughter until their arrival."

The evidence was objected to on the ground that it was incompetent, irrelevant, and immaterial and hearsay. The court ruled as follows: "Oh, no, it is not, but until it is con

nected that cannot be brought out. . . . The objection is overruled. However, the question has got to be connected before it can be used against your client."

...

A telegram from Mr. Whitell would clearly be immaterial and incompetent unless it was shown that he was acting for the mother, and evidence that a telegram was exhibited to the plaintiff by the attorney of the daughter, without some evidence that the telegram was sent by the mother or by her authority, would be immaterial.

A brother, William D. N. Howard, employed Dr. Teass to look after the daughter. Teddy Howard, the injured brother, employed Doctor Chidester. With reference to various relatives with whom he conferred, plaintiff testified: "I was assured to go ahead by all concerned, and I was to be adequately remunerated; no definite statement as to who should do that or as to how or what it should be." Plaintiff testified that he was in daily attendance upon the daughter up to the 30th of January.

The daughter was a wealthy woman and able to pay for the services rendered to her. The mother was not liable for such services in the absence of a contract on her part to pay therefor. Appellant claims that the evidence is altogether insufficient to establish either an express or an implied contract on the part of the mother to pay for the services rendered to the daughter. [2] The general rule is that one who calls upon a physician to render services to another is not liable for those services in the absence of an express agreement to pay therefor. (40 Cyc. 2808, 2809.) This applies where the physician is called by a parent to render services to an adult son or daughter (Crowell v. Donoho, 168 Mo. App. 305 [153 S. W. 1082]; Crane v. Baudouine, 55 N Y. 256; McGuire v. Hughes, 207 N. Y. 516 [Ann. Cas. 1914C, 585, 46 L. R. A. (N. S.) 577, 101 N. E. 460]; Boyd v. Sappington, 4 Watts (Pa.), 247), and to services rendered to a daughter-in-law (Dorion v. Jacobson, 113 Ill. App. 563), or to a wife's relative (Curry v. Shelby, 90 Ala. 277 [7 South. 922]).

In the case of McGuire v. Hughes, supra, the rule is thus stated: "The general rule that, where a person requests of another the performance of services, which are performed, the law implies a promise by the former to pay their reasonable value, has no application in the case of a physician,