Greensfelder v. Witte Hardware Company
| Citation | 175 S.W. 275,189 Mo.App. 576 |
| Parties | HARRY GREENSFELDER, Respondent, v. WITTE HARDWARE COMPANY, Appellant |
| Decision Date | 06 April 1915 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. Rhodes E. Cave Judge.
Judgment affirmed.
M. U Hayden and H. H. Scott for appellant.
(1) Where one person merely requests a physician to perform services for another, the law does not raise an implied promise, on the part of the one making the request, to pay for the services so rendered. Meisenbach v. Cooperage Company, 45 Mo.App. 232; Jesserich v. Walruff, 51 Mo.App. 270; Ghio v. Schaper Bros. Mercantile Co., 180 Mo.App. 686, 163 S.W. 553; Morrell v Lawrence, 203 Mo. 363. (2) An employer is under no legal obligation to provide medical or surgical treatment for an employee who has been injured while in the performance of the duties of his employment; therefore, there is no implied agreement, on the part of the employer, to pay for such treatment from the sole fact of the relationship of employer and employee. 2 Thompson on Corporations (2d Ed.), sec. 1430; 10 Cyc., page 926, paragraph 6; Meisenbach v. Cooperage Company, 45 Mo.App. 232; Jesserich v. Walruff, 51 Mo.App. 270; Hasler v. Ozark Lumber & Land Co., 101 Mo.App. 132; Weinsberg v. St. Louis Cordage Co., 135 Mo.App. 553, 116 S.W. 461; Ghio v. Schaper Bros. Merc. Co., 180 Mo.App. 686, 163 S.W. 553; Cotnam v. Wisdom, 83 Ark. 601, 12 L.R.A. (N. S.) 1090; Raoul v. Newman, 59 Ga. 408; Starrett v. Miley, 79 Ill.App. 658; Norton v. Rourke, 130 Ga. 600, 124 Am. St. 187; Spelman v. Mining Co., 26 Mont. 76, 66 P. 597; Godshaw v. Struck, 109 Ky. 285; Davis v. Forbes, 171 Mass. 548, 47 L.R.A. 170; Manufacturing Co. v. Glover, 29 Ga. 399. (3) An employer can be held responsible for medical or surgical treatment rendered by a physician to an injured employee only by reason of an actual agreement to pay for same. Weinsberg v. St. Louis Cordage Co., 135 Mo.App. 553, 116 S.W. 461; Hasler v. Lumber Co., 101 Mo.App. 132; Ghio v. Schaper Bros. Merc. Co., 180 Mo.App. 686, 163 S.W. 553; Morrell v. Lawrence, 203 Mo. 363; Wagner v. Illuminating Co., 141 Mo.App. 51. (4) The secretary of a mercantile corporation has no inherent authority or power by virtue of his office to bind the corporation for the payment of services rendered by a physician to an injured employee of the corporation. In order to recover from the corporation for such services, upon the alleged agreement of the secretary to pay for same, it must appear either that the directors had theretofore authorized him to employ physicians, on the responsibility of the corporation, or that they had ratified his action in so doing, on prior occasions. Stanley v. Transit Co., 136 Mo.App. 388; Hardware Co. v. Grocer Co., 64 Mo.App. 677; Famous Shoe & Clothing Co. v. Iron Works, 51 Mo.App. 66; Bank v. Hogan, 47 Mo. 372; 2 Thompson on Corporations (2 Ed.), secs. 1513-1514; City of Chicago v. Stein, 252 Ill. 409, 413; William v. Harris, 198 Ill. 501; Harris v. Hotel Co. (Sup. Court of New Jersey), 70 A. 330; 3 Cook on Corporations (6 Ed.), sec. 717. (5) Even in those cases holding that the executive officers of a corporation have authority to employ a physician, on the responsibility of the corporation, to render services for an injured employee, it is further held that their authority is limited to providing emergency treatment and that such authority extends no further than the emergency. 5 Labatt on Master & Servant (2 Ed.), sec. 2004, subdiv. (d), p. 6213; Railroad v. McMurray, 98 Ind. 358; Slater v. Telephone Co., 112 N.W. 600, 13 L.R.A. (N. S.) 545 (Neb.); Aimone v. Railroad, 182 Ill.App. 592; Holmes v. McAllister, 123 Mich. 493; Railroad v. McDonald, 12 Ind.App. 620, 40 N.E. 821; Railroad v. McDonald, 17 Ind.App. 492, 60 Am. St. 172; Cushman v. Mining Co., 170 Ind. 402, 16 L.R.A. (N. S.) 1078, 127 Am. St. 759; Weinsberg v. Cordage Co., supra. (6) The law is well settled that the foreman of one of many departments of a business corporation has no implied authority, by virtue of his position, to bind the corporation for the payment of the services of a physician rendered an injured employee of the corporation. Brown v. Railroad, 67 Mo. 122; Tucker v. Railroad, 54 Mo. 177; Meisenbach v. Cooperage Co., 45 Mo.App. 232; Godshaw v. Struck, 109 Ky. 285; King v. Lithographing Co., 183 Mass. 301. (7) In order to sustain the judgment, in this case, the burden is upon respondent to show: First, that he rendered the services sued for; second, that at the time when he began, and was, performing such services, he intended to charge appellant therefor; third, that at the same time appellant intended to pay for same. The failure to establish by a preponderance of the evidence any one of these facts will preclude recovery in this case. Weinsberg v. Cordage Co., supra; Ghio v. Schaper Bros., supra; Hiemenz v. Goerger, 51 Mo.App. 586; Wagner v. Illuminating Co., 141 Mo.App. 51; Morrell v. Lawrence, 203 Mo. 363. (8) The meeting of the minds which is essential to the formation of a valid actual contract is not determined by the secret intentions of the parties, but by their expressed intentions which may be at variance with the former. Brewington v. Mesker, 51 Mo.App. 348; Northrup v. Coulter, 150 Mo.App. 639; Embry v. Dry Goods Co., 127 Mo.App. 383; Stopp Food Co. v. Bridges, 160 Mo.App. 122; 9 Cyc., pages 245 and 246. (9) The intention, on the part of respondent, to charge appellant must have existed at the time that he began, and was, performing the services sued for. It cannot result from, or be affected by, any subsequent circumstances. Bittrick v. Gilmore, 53 Mo.App. 53; Guenther v. Birkicht, 22 Mo. 439; Morris v. Barnes, 35 Mo.App. 412; Lippmann v. Tittmann, 31 Mo.App. 69; Hart v. Hart's Admr., 41 Mo. 441. (10) If, at the time of beginning his treatment of the injured, respondent intended to charge either the injured person or any other person than appellant, for his services, he cannot recover from appellant. Kinner v. Tschirpe, 54 Mo.App. 575; Cases cited under Subdivision IX. (11) Appellant cannot be held liable in this case because it did not object to respondent's treatment of Siemens, or because it did not notify him to discontinue his services. Hartnett v. Christopher, 61 Mo.App. 65; Hiemenz v. Goerger, 51 Mo.App. 586. (12) There being no substantial conflict in the testimony, and all of the testimony, in the record, having been introduced by respondent, the question of appellant's liability is one of law and it is for this court to determine whether there is any substantial evidence tending to establish an actual contract, on the part of appellant, to pay respondent for the services here sued for. Stafford v. Adams, 113 Mo.App. 717; Sexton v. Railroad, 245 Mo. 254, 149 S.W. 21; Champagne v. Haney, 189 Mo. 726; Pickens v. Railroad, 125 Mo.App. 419, 102 S.W. 631; Dutcher v. Railroad, 241 Mo. 137, 145 S.W. 63; State ex rel. v. Hallen, 165 Mo.App. 422, 146 S.W. 1171.
Bernard Greensfelder for respondent.
(1) If the relation of the person making the request for medical attention is such as to raise the legal obligation, on his part, to call a physician, and services are rendered pursuant to such request, the party making the request must pay the physician. Weinsberg v. St. Louis Cordage Co., 135 Mo.App. 553; Ghio v. Mercantile Co., 180 Mo.App. 686; Hunicke v. Meramec Quarry Co., 172 S.W. 43. (2) Defendant by its highest executive officer then present having directed medical treatment for one of its employees, is bound to pay for the services rendered whether there was a direct promise to pay therefor or not. Wagner v. Illuminating Co., 141 Mo.App. 51, 69; McCarthy v. Railroad, 15 Mo.App. 383; Weinsberg v. St. Louis Cordage Co., 135 Mo.App. 553; Newberry v. Granite & Construction Co., 180 Mo.App. 672; Ghio v. Mercantile Co., 180 Mo.App. 686. (3) It was for the jury to determine from all the evidence, and the inferences to be drawn therefrom, whether, first, plaintiff was requested to render the services sued for by some officer having authority to act; second, that plaintiff intended to charge the defendant; third, that the officer who requested the rendition of the treatment intended to bind defendant. Weinsberg v. St. Louis Cordage Co., 135 Mo.App. 553; Hasler v. Ozark Lumber Co., 101 Mo.App. 136; McCarthy v. Railroad, 15 Mo.App. 385; Freeman v. Junge Baking Co., 126 Mo.App. 124; Newberry v. Granite & Construction Co., 180 Mo.App. 672; Ghio v. Schaper Bros. Mercantile Co., 180 Mo.App. 686; Morrell v. Lawrence, 203 Mo. 363; French v. Burlingame, 155 Mo.App. 548. (4) Upon receiving notice of the injury and the employment of a physician by one authorized to engage the services of such physician, the company, if it desired to repudiate responsibility, should dissent and notify the physician that it would no longer be responsible for his pay. Sevier v. Railroad, 92 Ala. 258; Railroad v. Prince, 50 Ill. 26; Ebner v. Mackey, 186 Ill. 297; Railroad v. Stockwell, 118 Ind. 98; Gray v. Lumpkin, 159 S.W. 880; Omaha General Hospital v. Strethlow, 147 N.W. 846.
This is an action by a physician and surgeon to recover for medical and surgical treatment rendered to an employee 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 employee of defendan...
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