Greensfelder v. Witte Hardware Co.

• Citation: 189 Mo. App. 576,175 S.W. 275
• Decision Date: 06 April 1915
• Docket Number: No. 13,697.,13,697.
• Parties: GREENSFELDER v. WITTE HARDWARE CO.
• Court: Court of Appeal of Missouri (US)

175 S.W. 275

189 Mo. A. 576

GREENSFELDER v. WITTE HARDWARE CO.

No. 13,697.

St. Louis Court of Appeals, Missouri.

April 6, 1915.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Action by Harry Greensfelder against the Witte Hardware Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. U. Hayden and H. H. Scott, both of St. Luis, for appellant. Bernard Greensfelder, of St. Louis, for respondent.

ALLEN, J.

This is an action by a physician and surgeon to recover for medical and surgical treatment rendered to an employé of defendant corporation, who was injured while in defendant's service. The cause, originated before a justice of the peace, and in due course found its way to the circuit court, where, upon a trial before the court and a jury, there was a verdict and judgment for plaintiff, and the case is here upon defendant's appeal.

On July 2, 1908, plaintiff, a practicing physician and surgeon in the city of St. Louis, was called by telephone to defendant's place of business on Second street, to attend one Siemens, an employé of defendant, who shortly previous thereto had been seriously injured in an elevator accident. It appears that defendant occupied one building on the east side of Third street, which extended east to an alley, and likewise another building east of the alley fronting on Second street, used as a warehouse. It was in the latter that Siemens was injured, on the fifth floor thereof; and other employés had placed him upon a cot on said floor.

It appears that plaintiff arrived at the Second street building within a few minutes after being summoned, saw the injured man, and, realizing that the patient was seriously injured and in great danger, at once telephoned for another physician, Dr. L. W. Reber, who arrived shortly thereafter. The evidence is that, after examining the patient and consulting with plaintiff, Dr. Reber, at plaintiff's request, made inquiry as to who was to pay for the treatment, first inquiring of an employé in charge of a department of defendant's business, and then asking that a "member of the firm" be summoned; that in response to this request a Mr. F. A. Witte, secretary of defendant company, and the officer of defendant corporation then in charge of its business, came to the fifth floor of the Second street building, and Dr. Reber told him of the situation and that it would be necessary to take the injured employé to a hospital for treatment. There is a conflict in the testimony as to what Witte thereupon said to Dr. Reber. The latter testified that Witte said:

"Go ahead; do the best you can with him; if you have to take him to the hospital, go ahead; do the best you can."

On the other hand, Witte's testimony as to this is as follows:

"I told him that we would have to leave it to him."

The injured man was taken to a hospital and given treatment, and plaintiff continued to treat him until March 9, 1909.

There is in fact but one assignment of error before us, and that pertains to the ruling of the trial court on defendant's demurrer to the evidence. It is true that appellant, as a separate assignment, says that the trial court should have sustained its motion for a new trial, on the ground that the verdict is "against the weight of the evidence," is "for the wrong party," and "should have been for defendant"; but this presents nothing for review in an appellate court.

Learned counsel for appellant urge that, for reasons assigned in appellant's brief before us, the evidence adduced was insufficient to take plaintiff's case to the jury, and that the trial court should have peremptorily directed a verdict for defendant. A careful review of the record, however, has convinced us that plaintiff made out a prima fade case, and we shall endeavor to dispose of the crucial questions raised in the course of the opinion.

I. It is true, as appellant asserts, that one does not ordinarily make himself liable to a physician by calling the latter to attend a third person who has been injured, or is otherwise in urgent need of such attention; that is to say, that from a mere request alone to perform such services, in the absence of a legal duty to provide the same, the law does not, as in the ordinary case where services are requested, imply a promise on the part of the party making the request to pay the reasonable value of the services when rendered. The reason for this is obvious. The law recognizes that in the everyday affairs of life a physician is frequently summoned to attend a sufferer, who is perhaps unable to thus act for himself, by one who is impelled so to do by the precepts of humanity alone. This doctrine, which is altogether wholesome and sound, is firmly established in our jurisprudence. See Meisenbach v. Cooperage Co., 45 Mo. App. 232; Jesserich v. Walruff, 51 Mo. App. 270; Weinsburg v. Cordage Co., 135 Mo. App. 553, 116 S. W. 461; Ghio v. Mercantile Co., 180 Mo. App. 686, 163 S. W. 551; Morrell v. Lawrence, 203 Mo. 363, 101 S. W. 571, 120 Am. St. Rep. 660, 11 Ann. Cas. 650.

II. But plaintiff's case does not rest upon the theory that the law will imply a contract to pay for plaintiff's services from the fact alone that plaintiff was summoned or otherwise merely requested to attend the injured employé. It does not in fact appear who telephoned to plaintiff. The inference from the testimony relative to this is that he was thus summoned by some employé of defendant at the instance of a "floor manager" in defendant's service; but this is immaterial, as the case stands. As the cause originated before a justice of the peace, there are no pleadings; but the right to recover against the defendant,, corporation, asserted by plaintiff, proceeds upon the theory that by reason of the conduct of defendant's secretary in his dealings with Dr. Reber, who was acting, in part at least, for plaintiff, the defendant became liable to plaintiff as upon an actual contract to compensate plaintiff for his services, or perhaps upon a contract implied by law from all of the attendant circumstances. The case was tried below upon the theory that there was an actual,: though not express, contract binding defendant.

But before passing to a consideration of other questions we should look to see whether the transaction in question, by virtue of which it is sought to hold the defendant corporation, was had with one clothed with authority to bind the corporation in the premises. Touching this matter, it may be noted that in his testimony Dr. Reber says that the above-mentioned conversation was had with "Fred Witte." The evidence reveals that there was a certain Fred Witte connected with the business, who was not an officer or director of defendant corporation, and possessed of no authority to act for it. It is suggested that Dr. Reber's testimony does not show that he had any dealings with F. A. Witte; but it is clear from an inspection of the record that it was F. A. Witte to whom this witness referred as being "Fred Witte." According to the testimony of Dr. Reber and one Staude, an employé of defendant, Dr. Reber first spoke to Staude concerning the necessity of taking the patient to the hospital, and, upon finding that Staude had no authority, asked for a "member of the firm." The evidence is, and it is undisputed, that within a short time Staude returned with F. A. Witte. But one such conversation is mentioned in the evidence, and F. A. Witte testifies to a conversation had with Dr. Reber under precisely the same circumstances as those detailed by the latter; the only conflict in the testimony being as to what F. A. Witte said. The jury could not have understood Dr. Reber's testimony to mean anything other than as above indicated.

But the authority of F. A. Witte to bind the defendant corporation under such...