Ghio v. Schaper Bros. Mercantile Co.

• Decision Date: 03 February 1914
• Citation: 163 S.W. 551,180 Mo. App. 686
• Parties: GHIO v. SCHAPER BROS. MERCANTILE CO.
• Court: Missouri Court of Appeals

163 S.W. 551

180 Mo. App. 686

GHIO v. SCHAPER BROS. MERCANTILE CO.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

Rehearing Denied February 17, 1914.

1. CORPORATIONS (§ 433) — AUTHORITY OF SUPERINTENDENT—QUESTION FOR JURY.

In an action by a physician against a department store for services rendered to an employé under contract with the superintendent, whether the superintendent had authority to bind the company by the contract held, under the evidence, a question for the jury.

2. CORPORATIONS (§ 433) — REPRESENTATION BY OFFICERS—QUESTION FOR JURY—RATIFICATION OF CONTRACT.

In an action by a physician against a department store for services rendered to an employé of the store under an unauthorized contract of employment made with the superintendent, held under the evidence a question for

the jury whether the president had ratified the contract.

3. CORPORATIONS (§ 407)—REPRESENTATION BY OFFICERS AND AGENTS.

The president of a department store, a corporation, has implied power to employ a physician to treat an injured employé.

4. PHYSICIANS AND SURGEONS (§ 13)—CONTRACT OF EMPLOYMENT.

That a person merely calls a physician to attend a third party does not raise an implied contract upon his part to pay therefor, unless he was under legal obligation to furnish such services, yet he is liable if there was in fact an actual contract to pay, and it need not be express, but an actual, as distinguished from an implied or constructive, contract.

5. PHYSICIANS AND SURGEONS (§ 24)—ACTION FOR COMPENSATION—QUESTION FOR JURY.

In an action by a physician against a department store for services rendered to an injured employé under an alleged contract with the superintendent, whether there was an actual contract to pay therefor held, under the evidence, a question for the jury.

6. TRIAL (§ 296) — INSTRUCTIONS — ERROR — CURE BY OTHER INSTRUCTIONS.

In an action by a physician against a department store for services rendered to an injured employé at the call of the superintendent, an instruction to find for plaintiff if the superintendent employed him and the services were rendered, erroneous in that it did not require a finding that the superintendent was authorized to bind defendant by such a contract, was not rendered sufficient by a subsequent instruction for defendant, requiring the jury to find as a fact that the superintendent had such authority, the rule that an instruction presenting but a partial view may be aided by others not being applicable, since the instruction covered the whole case, and authorized a finding upon an erroneous view.

7. PHYSICIANS AND SURGEONS (§ 24)—ACTION FOR COMPENSATION—INSTRUCTIONS.

Where, in an action by a physician against a department store for services rendered to an injured employé under an alleged contract with the superintendent, the defense was that plaintiff was employed by an insurance company to render first-aid treatment to employés in its store, and there was evidence that plaintiff had requested payment from the insurance company, the court should have submitted to the jury the matter of the arrangement between plaintiff and the insurance company.

8. EVIDENCE (§ 213)—ADMISSIONS—OFFERS OF COMPROMISE OR SETTLEMENT.

Where, in an action by a physician against a department store for services rendered to an injured employé, the defense was that plaintiff was employed by an insurance company in which defendant carried insurance, it was error to exclude evidence that defendant had presented his claim to the insurance company, and had tried to compromise, since this was an admission not made pending any compromise between plaintiff and defendant.

9. PHYSICIANS AND SURGEONS (§ 21)—RIGHT TO COMPENSATION.

A physician employed by a department store to render services to an injured employé could not recover for consultations with physicians appointed by the court, in an action by the injured employé against the store, with a view of giving evidence in that action.

10. PHYSICIANS AND SURGEONS (§ 24)—ACTIONS FOR COMPENSATION—ADMISSIBILITY OF EVIDENCE.

In an action by a physician against a department store for services rendered to an injured employé, it was error to permit defendant to introduce in evidence the petition, in an action by the employé against the store, showing that she also was seeking to recover for medical expenses.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Joseph P. Ghio against the Schaper Bros. Mercantile Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

McShane & Goodwin, of St. Louis, for appellant. Vital W. Garesche, of St. Louis, for respondent.

NORTONI, J.

This is a suit on an account for medical and surgical service rendered to the benefit of a third person, it is said, under a contract with defendant. Plaintiff recovered and defendant prosecutes the appeal.

Plaintiff is a practicing physician and surgeon in the city of St. Louis, and defendant Schaper Bros. Mercantile Company is a corporation engaged in the general mercantile business; that is to say, it owns and conducts a large department store in the same city. It appears that plaintiff physician occupied an office in the same building with defendant mercantile establishment, and it is conceded throughout the case that he was regarded as the "house physician," and subject to call for the treatment of such injuries or indisposition as might befall those employed in Schaper Bros.' store. The evidence tends to prove that on December 17, 1910, Maude Woods, an employé of defendant in its kitchen, adjacent to the store restaurant, was severely scalded through the explosion of a steam drum about which she pursued her calling. Immediately thereafter, and while the injured employé was but semiconscious at least, defendant's superintendent, Walter O. Weichelt, summoned plaintiff, Dr. Ghio, to treat and care for her. Dr. Ghio reported immediately on the scene of the accident, and administered temporary relief, but to do so found it essential to have certain drugs, such as opium to allay pain, medicated cotton, etc., and informed the superintendent to that effect. It is conceded that thereupon Mr. Weichelt instructed the doctor to procure such necessaries from a nearby drug store, as he did, and, according to the evidence of plaintiff, said to him to spare no expense whatever and save the life of plaintiff, for Schaper Bros. did not want to lose her. However, of this, Mr. Weichelt insists, in giving such instruction, he contemplated only, and that plaintiff evidently so understood the fact to be, that temporary treatment, or first aid alone, was to be administered by plaintiff on his order, for it is said such only was within his authority as superintendent of the store and under the contract of defendant with the Casualty Company of America, which carried liability insurance covering defendant's employés and relating to such matters. After plaintiff had administered temporary relief to Maude Woods, he reported to Mr. Weichelt that the patient should be conveyed to a hospital, as her injuries were very serious, and inquired if he should send her to the city hospital. Plaintiff says that Mr. Weichelt answered this inquiry by saying, "No; take her to the Deaconess Hospital and spare no expense about her treatment, for she is an old employé and Schaper Bros. do not want to lose her." Thereupon, Mr. Weichelt called up the Deaconess Hospital by telephone and arranged for the patient to be received there, and this is conceded throughout the case. Dr. Ghio accompanied the patient to the hospital and treated her there for several weeks, until she was finally removed to her home, where he continued to treat her until recovery was had. Plaintiff paid daily professional visits to the patient, and evidently administered proper treatment, and this, too, with great care, for it appears splendid results were accomplished, and a recovery was had though the injuries were well-nigh fatal. The Casualty Company of America, which carried liability insurance on defendant, paid plaintiff $25 for attending the patient in and about the administration of first aid or temporary treatment while she was yet at the place of injury in the kitchen of the store, and this suit proceeds against defendant as though he was employed under a contract with it to treat her from thence thereafter in the hospital, and while at her home until she had recovered. The first item on the account is a charge of $10 for treatment administered on December 17, 1910, at the hospital, and it appears plaintiff accompanied the patient from the store to the hospital, though she was taken there in another conveyance, that is, an ambulance called by Mr. Weichelt.

It is argued on the part of defendant that the court should have directed a verdict for it on a conclusion of law to the effect that, though Mr. Weichelt was its superintendent, no power inhered in that office authorizing him to commit defendant corporation as by contract for medical and surgical services rendered to a third person injured in its employ, but we are not so persuaded on the facts of the case. It is entirely true that the mere office of superintendent does not, in and of itself, imply authority essential to bind the corporation on such contracts for medical services rendered to a third person. The Supreme Court has heretofore determined that the office of division superintendent on a railroad did not, in and of itself, without more appearing, authorize such superintendent to commit the company for the payment of medicines at a drug store for the relief and benefit of a person injured by its cars. See Brown v. Missouri, K. & T. R. Co., 67 Mo. 122. So, too, this court on a former occasion declared the same doctrine to the effect that the mere position of superintendent of a manufacturing company, incorporated, did not imply as a matter of law that such superintendent possessed authority to employ a physician and...