Cameron v. Electric Household Stores, Inc., 23079.

Citation78 S.W.2d 548
Decision Date05 February 1935
Docket NumberNo. 23079.,23079.
PartiesDR. SOLON CAMERON, RESPONDENT, v. ELECTRIC HOUSEHOLD STORES, INC., D/B AS THOR ELECTRIC SHOP, APPELLANT.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court of City of St. Louis. Hon. Frank C. O'Malley, Judge.

AFFIRMED.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The statement filed in the justice court was sufficient to give the court jurisdiction and is sufficient as against the attack as here made upon it. Quinn v. Stout, 31 Mo. 160; Lustig v. Cohen, 44 Mo. App. 271; Meyers v. Realty Co., 96 Mo. App. 625; Shortridge v. Raifferson, 204 Mo. App. 166; Norton v. Allen, 4 S.W. (2d) 841; Witting v. Ry. Co., 101 Mo. 631; Rundelman v. Boiler Wks. Co., 178 Mo. App. 642; Elwood v. Construction Co., 183 Mo. App. 289. (2) Dorband, as general manager, under the circumstances shown in the evidence, had authority by virtue of his office, to employ plaintiff and bind the defendant to pay for his services. 3 Thompson on Corporations (3 Ed.), Secs. 1691-2; Monsanto Chemical Works v. Lead & Smelter Co., 253 S.W. (Mo.) 1006, l.c. 1011, column 1; Robinson v. Mining Co., 178 Mo. App. 531, l.c. 539; Crossley v. Lumber Co., 187 S.W. 113; Hasler v. Land & Lumber Co., 101 Mo. App. 136; Reynolds v. Railroad, 114 Mo. App. 670; Newberry v. Construction Co., 180 Mo. App. 672; Added by by leave of Court, September 25, 1934. Weinberg v. Cordage Co., 135 Mo. App. 553; Osmer v. Brokerage Co., 155 Mo. App. 211; Ghio v. Mercantile Co., 180 Mo. App. 686; Greensfelder v. Hardware Co., 189 Mo. App. 516. (3) If respondent furnished medical service at the request and promise to pay of Dorband, as general manager of defendant, relying upon the authority implied from his office as general manager, he was not bound by any limitation of Dorband's authority contained in the charter or resolution of the board of directors of the company. 2 Thompson on Corporations, Sec. 1156; Ten Broek v. Boiler Co., 20 Mo. App. 19; Rosenbaum v. Gillian, 101 Mo. App. 126; Crossley v. Lumber Co., 187 S.W. (St. L.) 113; Reynolds v. Ry. Co., 114 Mo. App., 1. c. 675.

Louis Lowell Hicks and Vogel & Field for appellant.

(1) An ordinary commercial corporation, unless expressly authorized to do so by its charter, has no power to use its funds or to incur obligations for the treatment of employees for sickness not incurred in the line of duty of the employee. 2 Thompson on Corporations (3 Ed.), Sec. 1540, p. 1147; Mahone v. P.E. Harris & Co., 6 Alaska 119; Wagner v. West Penn. Power Co., 110 Pa. Super. 221, 168 Atl. 478; Harris v. Vienna Ice Cream Co., 46 Misc. 125, 91 N.Y. Supp. 317; Chase v. Swift & Co., 60 Neb. 496, 84 N.W. 86; Dale v. Donaldson Lbr. Co., 48 Ark. 188, 2 S.W. 703. (2) Officers of ordinary corporations cannot, without special authority, bind it by the employment of physicians to attend an employee for an illness not occurring in the line of duty of the employee. 2 Thompson on Corporations, Sec. 1540, p. 1147; Brown v. M.K.T.R.R. Co., 67 Mo. 123; Jesserich v. Walruff, 51 Mo. App. 270; 2 C.J. 662 and cases note 8; Meisenbach v. Southern Cooperage Co., 45 Mo. App. 232; Ghio v. Mercantile Co., 180 Mo. App., l.c. 693; Harris v. Vienna Ice Cream Co., 46 Misc. 125; Mahone v. P.E. Harris & Co., 6 Alaska 119; Spelman v. Gold Coin Mining & Miling Co., 26 Mont. 76, 66 Pac. 597; Cushman v. Cloverland Coal & Mining Co., 170 Ind. 402, 84 N.E. 759; Kink v. Forbes Lithograph Mfg. Co., 183 Mass. 301, 67 N.E. 330; Swazey v. Union Mfg. Co., 42 Conn. 556; Chase v. Swift & Co., 60 Neb. 696, 84 N.W. 86; Malone v. Robinson, 12 So. 709 (Miss.); Virginia Iron Co. v. Oble, 105 S.E. 107 (Va.); Wagner v. West Pa. Power Co., 110 Pa. Super. 221, 168 Atl. 479; Sheehan v. Elliott Mfg. Co., 145 Atl. 39 (N.H.); E.O. Painter Fertilizer Co. v. Boyd, 114 So. 444 (Fla.). (3) The statement does not set forth facts sufficient to constitute a cause of action; there was no allegation in the statement that appellant was bound to furnish such services to Richard R. Callahan and there is no allegation that appellant promised to pay for the services. 48 C.J. 1163; Hunicke v. Meramec Quarry Co., 262 Mo. 560; Jesserich v. Walruff, 51 Mo. App. 270; Brown v. M.K.T.R.R. Co., 67 Mo. 122; Meisenbach v. Southern Cooperage Co., 45 Mo. App. 232; Bedford, etc., R.R. Co. v. McDonald, 12 Ind. App. 620, 40 N.E. 821. (4) There was no testimony that Joseph M. Dorband had authority to employ physicians to attend employees for illness not occurring in line of duty; the statements of the witness, Broderick, as to the conversations with Joseph M. Dorband, if introduced for that purpose, were incompetent and should have been excluded because the declarations of an agent are not admissible against the principal to show the extent of the agent's authority. 2 C.J. 938; Jensen v. Turner Bros., 16 S.W. (2d) 742; McElroy v. Marquette Iron & Steel Co., 24 S.W. (2d) 702. (5) Instruction number one given by the court at the request of the respondent did not require the jury to find that the appellant corporation had power to spend its funds in furnishing medical attention to employees for illness not occurring in line of duty and said instruction was erroneous. Ghio v. Mercantile Co., 180 Mo. App. l.c. 696. (6) Instruction offered by the appellant correctly stated the law with reference to one dealing with an agent, and should have been given by the court. Muth v. St. Louis Trust Co., 94 Mo. App. 94; 2 C.J. 562; Mathes v. Switzer Lbr. Co., 173 Mo. App. 239; Hodkinson v. McNeal Machine Co., 161 Mo. App. 87.

SUTTON, C.

This action was commenced before a justice of the peace in the City of St. Louis. The statement filed with the justice alleges that the defendant is indebted to him for professional services rendered Richard R. Callahan at the special instance and request of defendant between February 3 and April 5, 1930, in the sum of $450, and asks judgment therefor.

The trial in the justice court resulted in a judgment in favor of plaintiff for $450. From this judgment defendant appealed to the Circuit Court.

The trial anew in the Circuit Court, with a jury, resulted in a verdict and judgment for plaintiff for $300. From this judgment defendant has appealed to this court.

Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence.

Defendant is a corporation engaged in selling electrical household appliances and equipment, with its home office located in Chicago. Defendant operated its business through many local or branch stores in many states, one of which was located in St. Louis. Richard Callahan was in the employ of defendant in charge of the St. Louis branch as a branch manager and had a large number of salesmen under him. Joseph M. Dorband was defendant's vice-president and general manager.

On February 3, 1930, Callahan became suddenly ill with lobar pneumonia. He had just been through a sales campaign and was complaining for several days before he was stricken with pneumonia. He was a stranger in St. Louis, and was without funds to defray the expenses of his illness. According to the evidence given on behalf of the plaintiff, Joseph A. Broderick, who was in the employ of defendant at its local branch in St. Louis, called up Mr. Dorband, at the home office of defendant in Chicago, when Mr. Callahan became ill with pneumonia, and told Mr. Dorband of Mr. Callahan's condition, and asked Mr. Dorband what was to be done. Mr. Dorband instructed Mr. Broderick to get a physician immediately, and take charge of the store, and said that he would be in St. Louis in a few days. Mr. Broderick then employed plaintiff to attend Mr. Callahan. Mr. Dorband came to St. Louis in a few days and called on Mr. Broderick. He told Mr. Broderick his purpose in coming to St. Louis was to look the situation over and see Mr. Callahan's condition. Mr. Broderick told Mr. Dorband that Mr. Callahan was desperately ill. Mr. Dorband told Mr. Broderick to pay whatever necessary bills that were incurred in Callahan's illness out of the petty cash fund and send the bills to Chicago with his budget statements. Mr. Broderick and Mr. Dorband then went to Mr. Callahan's home, and there met the plaintiff. Plaintiff expressed a desire to have an understanding respecting the payment of his bill for his services, and Mr. Dorband said to plaintiff: "Doctor, this company will pay your bill when you render it, and any expense incurred by you in Mr. Callahan's illness, we will take care of." Plaintiff continued his attendance upon Mr. Callahan until he recovered from his illness.

Mr. Dorband, testifying on behalf of defendant, admitted that he went to Mr. Callahan's home with Mr. Broderick, but denied that he saw the plaintiff there, or that he had ever talked to him, or that he gave any authority or consent for medical attention in regard to Mr. Callahan's illness, and stated that he had no authority to bind the company for medical attention. No by-law or record of the corporation, prescribing or limiting his authority as general manager, was shown.

Defendant contends that its instruction in the nature of a demurrer to the evidence should have been given because there was no evidence to show that defendant's general manager had any authority to bind the defendant to pay for medical services for an employee.

The decisions in other jurisdictions, respecting the authority or not of officers and agents of a corporation, other than a railroad corporation, to charge the corporation with the employment of physicians and surgeons to attend upon sick or injured employees, are in hopeless confusion, and it can serve no useful purpose to review them here. Suffice it to say that there are cases holding that officers and agents having general powers, and under some circumstances subordinate agents,...

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