Holmes v. McAllister

• Decision Date: 27 March 1900
• Citation: 123 Mich. 493,82 N.W. 220
• Court: Michigan Supreme Court
• Parties: HOLMES v. McALLISTER et al.

82 N.W. 220

123 Mich. 493

HOLMES v. McALLISTER et al.

Supreme Court of Michigan

March 27, 1900

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by Arthur D. Holmes against David J. McAllister and others for medical services. From a verdict for plaintiff defendants bring error. Reversed.

Plaintiff a physician, sued the defendants, co-partners in a laundry business, for medical services rendered one of their employ�s, and recovered a verdict of $50. The case was submitted to the jury upon two theories: (1) That there was an original contract of employment between plaintiff and defendants; (2) that the act of the forewoman of defendants in sending for plaintiff to attend the employ�, if unauthorized by them, was subsequently ratified. Defendants insist that there was no original contract, and no ratification of an unauthorized contract. There is little, if any, dispute about the material facts. Plaintiff had no conversation with either of the defendants in regard to the service, and the parties had never met until the trial in the justice court. The employ�, Augusta Senken, had her hand seriously injured on April 19th. Neither of the defendants was in the laundry at the time. Defendant James usually spent most of his time there. One Miss McGrath, the forewoman, had charge of the work on the four floors of the building; hired and discharged girls when she saw fit; and, when James was not there, acted in case of an emergency. The injury was so serious that Miss McGrath deemed prompt medical assistance advisable. She sent a boy for a physician, not designating any particular one. The boy called plaintiff. He immediately responded, dressed the wound, and ordered her to be taken home, saying that he would have to see her again. She was taken home in a carriage. In the afternoon of the same day she was suffering pain, and sent a note to a store near by to telephone to the laundry. Some one at the laundry telephoned to plaintiff, and he went to see her. Defendants had no knowledge of this. Plaintiff treated her at her home until she was able to go out, and then she went to his office, and there received treatment until the wound was healed. She was under treatment for about three months. The only conversation plaintiff had with any one connected with the defendants was with Miss McGrath, and he does not tell what that conversation was. It was at the house of Mrs. Knack, with whom Miss Senken lived. Miss McGrath testified: 'The doctor asked me if Mr. McAllister had said anything in regard to him taking care of the girl. I said he hadn't said anything to me. He says, 'Well, I would like to make the bill as reasonable as possible for Mr. McAllister, and at the same time take care of the girl properly.' I said 'Well, I don't know what Mr. McAllister would do in a case of this kind. We have never had an accident before, and it would be better to see him.' So he said he would call and see Mr. McAllister.' Miss Senken testified that she heard this conversation, and states it as follows: 'Miss Margaret McGrath came to my house several times while the doctor was there. One time he asked her if Mr. McAllister says anything, and if it was all right about the bill; and she says to him that she thought that Mr. McAllister was a very good man, and that he would pay the bill.' Mr Knack, husband of Mrs. Knack, testified that in June, after the accident, he went to defendant James, and asked him to help the girl; that he declined, and, after a little while said, 'I will pay the doctor's bill.' Mr. Kissane, one of the attorneys for plaintiff, testified: 'I went to see James McAllister with a view of collecting the bill in controversy at the request of Dr. Holmes, shortly before the commencement of this suit. I told him the doctor was claiming $104. I demanded the payment of the bill. He declined to pay the full amount, and said that he was willing to pay the first visit, whatever that might be worth, but he didn't think he ought to pay the entire bill; that the calling of the doctor by the forelady was all right; it was something that he would have done himself, had he been there in the laundry at the time, and that he didn't go back on that, and whatever was reasonable for that first visit he was willing to pay.' The above is all the testimony bearing upon the liability of the defendants. Plaintiff called in two physicians, one for advice and another to assist him in an operation, all of which was unknown to defendants. No accident had ever happened in the laundry before. The first intimation the defendants had that plaintiff considered them liable was when they received a bill after the services were rendered.

Ira A. Lieghley, for appellants.

Thomas Kissane and C. H. Wilson, for appellee.

GRANT J. (after stating the facts).

Had defendants' forewoman authority to bind them by sending for plaintiff to attend the injured employ�? She had no general authority to do...