O'Ferrall v. Nashville Bridge Co.

• Decision Date: 12 March 1928
• Docket Number: 26879
• Citation: 165 La. 963,116 So. 399
• Parties: O'FERRALL v. NASHVILLE BRIDGE CO
• Court: Louisiana Supreme Court

116 So. 399

165 La. 963

O'FERRALL v. NASHVILLE BRIDGE CO

No. 26879

Supreme Court of Louisiana

March 12, 1928

Appeal from Civil District Court, Parish of Orleans; H. C. Cage Judge.

Action by Dr. John T. O'Ferrall against the Nashville Bridge Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Terriberry Young, Rault & Carroll and Spearing & Mabry, all of New Orleans, for appellant.

John May, of New Orleans, for appellee.

OPINION

O'NIELL, C. J.

This is a suit for fees charged for medical and surgical treatment rendered by the plaintiff to seven employees of the defendant, who were injured in an accident. The civil district court gave judgment in favor of the plaintiff for the amount sued for, $ 6,500. The defendant has appealed from the decision.

The appellant pleaded, in defense of the suit, first, that there was no contract of employment between the plaintiff and defendant; second, that, if there was an agreement between the plaintiff and a representative of the defendant, the representative had no authority to make such a contract for the defendant; third, that, if there was such a contract, it was a contract to pay the debts of third persons -- the seven injured menand, being only a verbal contract, was not enforceable, because article 2278 of the Civil Code declares that parol evidence shall not be received to prove any promise to pay the debt of a third person; fourth, that the fees for medical and surgical treatment rendered to the injured workmen were governed and limited in amount by the Workmen's Compensation Law, or Employers' Liability Act -- section 8 of Act 20 of 1914, as amended by Act 43 of 1922, p. 74 -- which required the employer, in every case coming under the provisions of the act, to furnish the employee reasonable medical, surgical, and hospital services and medicines, not to exceed $ 250 in value. The defendant pleaded also, as an alternative defense, to be considered only in the event that the court should hold the defendant liable beyond the limit of $ 250 for each injured man, that the fees charged by the plaintiff were excessive.

The plaintiff is a prominent surgeon, practicing in New Orleans, and making a specialty of orthopedic surgery. The defendant is a corporation engaged in the building of steel structures and having headquarters at Nashville, Tenn. At the time of the accident from which this suit arose, the defendant maintained an office in New Orleans, under the supervision of a consulting and constructing engineer named A. W. Woodman. The company was engaged in the construction of a large steel tank for the Sinclair Oil Company, at Mereaux, in St. Bernard parish, near the city limits of New Orleans. The foreman in charge of the construction work, and employed by the defendant, was George T. McMurtry, who was on the job at the time of the accident. John W. Evans was superintendent of the plant of the Sinclair Oil Company at the time of the accident. Seven mechanics employed by the defendant were working at and under the roof of the tank, and were on a scaffold, suspended from the roof, when the scaffold collapsed and the men fell twenty-five or thirty feet, upon the steel floor of the tank. They were horribly mangled. As the superintendent, Evans, said in his testimony:

"The men were lying there, a mass of blood and broken bones."

Evans had his employees to remove the men from the tank, and immediately telephoned to Woodman, at his office in New Orleans. Meantime Evans had obtained hurriedly from one of his clerks who lived in New Orleans a list of four of the best surgeons in the city, of whom the clerk recommended Dr. O'Ferrall as the best orthopedic surgeon, or bone specialist, as the witnesses called him. Evans told Woodman of the nature and seriousness of the accident, said that he had telephoned to the Charity Hospital for ambulances, and said that the men's injuries were of such character that he thought Woodman's company should have a good bone specialist to attend to them. Woodman said that he thought so too, judging from the height from which the men had fallen to the steel floor of the tank; and, being not acquainted with any surgeon in New Orleans, Woodman requested Evans to select the surgeon, and said that he "would indorse his choice." Evans then told Woodman of Dr. O'Ferrall's reputation as a bone specialist, and Woodman said, "Fine, go get him, Jimmy." Evans telephoned to the doctors' exchange, to locate Dr. O'Ferrall. Before the doctor answered on the telephone, two of the ambulances from the Charity Hospital had arrived and departed with two of the injured men. When Evans got into communication with Dr. O'Ferrall, Evans told him of the accident, said that the men had many bones broken, and asked the doctor if he could take care of the men, and the doctor replied that he could. Then Evans told the doctor that two of the ambulances were already on their way to the Charity Hospital, and the doctor replied that he had not sufficient facilities at his command at the Charity Hospital to treat that many patients for such injuries at one time, and he said that the men would have to be sent to Touro Infirmary for him to treat them. Evans assented, and telephoned to the Charity Hospital and diverted the two ambulances to Touro Infirmary and sent the remaining injured men also to Touro Infirmary.

As soon as Woodman had given the instructions to Evans to employ Dr. O'Ferrall, he, Woodman, wired the defendant at Nashville:

"Scaffold broke at Sinclair dropping seven men, all seriously injured."

-- and Woodman got into a taxicab and went to the scene of the accident. He arrived just as the last ambulance was leaving for Touro Infirmary with the last of the seven injured men. After looking over the situation and attempting to make a photograph of the inside of the tank, he returned to his office in New Orleans, and there found a telegram from the president of his company, saying:

"Retell accident. No record [of] insurance here [on] that job. See that men are well taken care of and left on pay roll."

Woodman then went to Touro Infirmary, saw the injured men, and saw Dr. O'Ferrall and showed him the telegram from the defendant. Woodman, as a witness, when asked if he had shown Dr. O'Ferrall the telegram, said:

"Yes, as evidence that I was doing right in employing him."

Dr. O'Ferrall then told Woodman that the injured men would need both day and night nurses, and that he, Dr. O'Ferrall, would also have to employ eye and nose specialists for them; to all of which Woodman made no objection, but, on the contrary, said to give the men whatever they needed. Accordingly the day and night nurses and the eye and nose specialists were employed, as were also specialists on certain internal injuries; and all of the persons so employed assisted in bringing about a marvelous recovery of six of the injured men. One died in the infirmary thirty-four days after the accident.

McMurtry also called at the infirmary on the afternoon of the accident and discussed the case with Dr. O'Ferrall, and in their conversation they referred to the telegram which Woodman had received from the Nashville Bridge Company, and Dr O'Ferrall told McMurtry that he, the doctor, would give the injured men whatever service and attention they needed. McMurtry testified that he merely requested the doctor to see that the injured men received "first aid," but Dr. O'Ferrall, in his testimony, denied that anything was said about "first aid," and the doctor...