Newberry v. Missouri Granite & Construction Co.

• Citation: 163 S.W. 570,180 Mo. App. 672
• Court: Court of Appeal of Missouri (US)
• Decision Date: 03 February 1914
• Parties: NEWBERRY v. MISSOURI GRANITE & CONSTRUCTION CO.

163 S.W. 570

180 Mo. A. 672

NEWBERRY v. MISSOURI GRANITE & CONSTRUCTION CO.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

1. CORPORATIONS (§ 407)—CONTRACTS—AUTHORITY OF OFFICERS.

Where a corporation's foreman called its general manager on the telephone, informed him of an injury to an employé, and that he had called in three physicians, and the general manager, in the presence of the president and after consulting with the president, told the foreman to employ competent physicians to perform the operation and have them attend and care for the employé, the employment of the physicians was authorized, and the corporation was liable for their services, since, whether a general manager has authority to employ a physician to treat an injured employé or not, the president undoubtedly has such authority.

2. CORPORATIONS (§ 433)—CONTRACT BY OFFICER —JURY QUESTION.

In an action by physicians to recover for services in caring for an injured employé of defendant, where defendant's foreman testified that he was told by the general manager to

employ physicians to perform an operation and to care for the employé, and, if the parties so chose, to take the employé to St. Louis, while the general manager and president testified that the foreman was told to send the employé to St. Louis for treatment after temporary relief was afforded, the conflict in the evidence was for the jury.

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

In an action by physicians to recover for services in treating an injured employé of defendant, it was not error to refuse to strike out the employés testimony that defendant's general manager offered to compromise his claim for injuries, and said that he would pay the doctors $100 for their services, where it did not appear that he was representing the physicians, that there was any treaty of compromise pending concerning the physicians' claims, or even that the offer was confidential.

4. EVIDENCE (§ 214) — ADMISSIONS — OFFERS OF COMPROMISE OR SETTLEMENT.

The law protects confidential overtures of pacification, and any other offers or propositions between litigating parties, expressly stated to be without prejudice, are excluded from evidence on grounds of public policy.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

Action by F. R. Newberry against the Missouri Granite & Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Benj. H. Marbury, of Farmington, for appellant. Edward D. Anthony and David M. Tesreau, both of Fredericktown, for respondent.

NORTONI, J.

This is a suit on an account for the services of three physicians and surgeons. Plaintiff recovered, and defendant prosecutes the appeal.

It appears that defendant, an incorporated company, owns and operates a stone quarry in St. Francois county. Theodore Anderson, who was in its employ at the quarry, was severely injured, as the result of an explosion, so as to occasion the amputation of both of his hands. Defendant's president, Gottlieb Eyerman, Jr., was in St. Louis at the time, as was also A. H. Schmalz, its secretary, treasurer, and general manager. James Nossit, defendant's foreman, was in charge of the work at the quarry in St. Francois county at the time Anderson received his injury, and immediately took him to the office of Dr. Shannon for treatment. Thereupon Dr. Shannon, with the consent and acquiescence of Nossit, called in Dr. Renfro to assist in caring for the injured man. The injury was a serious one to both arms, and it was obvious that an extensive operation was required. Neither Dr. Shannon nor Dr. Renfro was prepared to undertake the operation, for, it is said, they did not possess the necessary instruments, and Nossit thereupon sent a telephone message to plaintiff, Dr. Newberry, at Fredericktown, to come at once and undertake it. Plaintiff inquired concerning the matter of compensation for his services, and Nossit instructed that the company would settle the bill. Immediately Nossit called up Mr. Schmalz, secretary, treasurer, and general manager of defendant company, at St. Louis, over the long-distance telephone, and informed him of the injury to Anderson, its serious character, and the fact that he had called in the three physicians to care for him. Nossit testifies that Mr. Schmalz fully approved of all that he had done in the matter, and told him to employ some one competent to operate upon Anderson and to have the "local physicians" treat and care for the patient, and that Mr. Schmalz further...