Lorie v. Lumbermen's Mut. Casualty Co.

• Decision Date: 11 June 1928
• Docket Number: No. 16309.,16309.
• Citation: 8 S.W.2d 81
• Parties: LORIE v. LUMBERMEN'S MUT. CASUALTY CO.
• Court: Missouri Court of Appeals

8 S.W.2d 81

LORIE v. LUMBERMEN'S MUT. CASUALTY CO.

No. 16309.

Kansas City Court of Appeals. Missouri.

June 11, 1928.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

Action by Alvin J. Lorie against the Lumbermen's Mutual Casualty Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Cowgill & Popham, of Kansas City, for appellant.

Rosenberger, McVey & Freet, of Kansas City, for respondent.

BLAND, J.

This is an action on an alleged contract by which defendant agreed to pay plaintiff, a physician, for his services in an operation on and for medical attention to one Roark. There was a verdict and judgment in favor of plaintiff in the sum of $1,250, and defendant has appealed.

The facts show that Roark was injured on July 21, 1925, while in the employ of the B-W Construction Co., a contractor, which was at the time erecting a building for Sears-Roebuck & Co. in Kansas City, Mo. The B-W Construction Company carried an employer's liability insurance policy with the defendant; this policy did not insure against liability, but against loss from claims arising from liability. The policy, however, provided that defendant would "pay for such immediate surgical relief as is imperative at the time of the accident"; that no action should be brought for reimbursement unless by the assured and after the loss was actually paid in money by the assured "after trial of the issue." The schedule of rates provided that "the above rate includes first medical and ambulance aid." At the time Roark was injured, Dr. Nigro, a physician and surgeon of Kansas City, had been employed by the defendant on a salary "to do the medical and surgical work for the employees of the Sears-Roebuck & Co.'s construction job." However, he did not limit his treatment to first aid, but in 99 per cent. of the cases he took care of the patient until he recovered. There were 876 men injured on the work during its progress. Dr. Nigro was never told by any representative of the defendant to limit his services to "first aid." The defendant had attorneys in Kansas City to look after its legal business at that place, to wit, Cowgill & Popham.

Roark was injured about 9 or 10 o'clock of the morning of July 21, 1925. Dr. Nigro was called by the man in charge of defendant's aid station at the Sears-Roebuck & Co.'s plant, who notified Nigro that Roark had been seriously injured. Dr. Nigro sent an ambulance, and Roark was removed to the Research Hospital in Kansas City. Dr. Nigro met Roark at the hospital and gave the patient first aid treatment. This was some time before noon. Shortly after noon an interne at the hospital examined Roark and reported to Dr. Nigro that the patient "was getting along very well." About 5 o'clock of the same day, plaintiff, being at the hospital for the purpose of operating upon another patient, was told by Dr. Nigro, who was also there, about Roark having been hurt on the Sears-Roebuck & Co.'s work. Plaintiff examined Roark and told Dr. Nigro "what he thought was wrong." Plaintiff then operated upon the other patient, after which the two physicians together again saw Roark and started to leave the hospital, when a nurse informed them that Roark was gasping for air and was unable to breathe. Roark had been injured by being struck in the neck with a rope or steel cable. He had a fracture of the windpipe and an injury to the trachea and larynx. The two doctors returned and found that Roark was about to suffocate as a result of his throat swelling, and Dr. Nigro told plaintiff to operate. Plaintiff, who was an eye, ear, nose, and throat specialist, with the assistance of Nigro, who administered the anæsthetic, operated upon Roark in the room where he had been placed; there not being time to remove him to the operating room. The operation performed is called tracheotomy.

Dr. Nigro, testifying for plaintiff, stated that he had no authority to employ a specialist of any kind without first consulting Cowgill or Popham and getting consent; that he did not consult either of them in this instance because he did not have the time prior to the operation; that had he taken the time to telephone the attorneys, Roark would have died. However, he testified that he told Cowgill the next morning that Dr. Lorie had operated on Roark and made a written report to Cowgill concerning the matter; Cowgill did not tell the witness not to employ plaintiff; that he talked to Cowgill from time to time about the progress Roark was making, and told him that plaintiff was in charge of the "specialist work on the case." Dr. Nigro testified that he had employed specialists 20 or 25 times in connection with the treatment of injured employees of the B-W Construction Company during the progress of the Sears-Roebuck work, but that at each of these times he had obtained the consent of Cowgill for the employment before it was made. It is not disclosed whether these 20 or 25 times occurred before or after plaintiff's employment by Dr. Nigro in this instance. However, it appears that plaintiff, with the prior consent of Cowgill, was employed by Dr. Nigro in connection with the treatment of one Roy Wilson upon one occasion prior to this time. Before plaintiff operated upon Roark, a telegram was sent by Nigro to the defendant's chief surgeon, Dr. Kuhn, at its home office in Chicago, describing Roark's injury and stating that Nigro had "called consultation may have to do tracheotomy." After the operation, Nigro wired Kuhn that the operation had been performed but did not state who performed it. Plaintiff assisted in drawing up both of these telegrams. No reply was received from Dr. Kuhn to these wires, and no objection to an operation or medical assistance by some outside doctor was made by him or any one else on behalf of the defendant.

Roark rallied after the operation and was attended by plaintiff until it was necessary for the latter to be out of town, when, with the consent of Dr. Nigro, the patient was turned over to Dr. Lux, a physician in plaintiff's office. The evidence is disputed as to the exact relationship between plaintiff and Dr. Lux. Dr. Lux performed a further operation for the purpose of repairing the damage to the larynx, restoring the voice of the patient and removing the silver tube from the trachea which had been inserted by plaintiff when the latter operated on the patient. The patient was attended by plaintiff and Dr. Lux for about two months. Between them they saw him over 60 times. At no time did Cowgill or any one for the defendant object to plaintiff's services being rendered to Roark, although Cowgill knew that the operation had been performed by plaintiff, and there is an inference from the testimony that he knew that plaintiff's services were being continued. Roark finally recovered, and plaintiff presented to Cowgill his bill, but defendant refused to pay the same, resulting in this suit.

The evidence further shows that plaintiff, at the instance of Dr. Nigro, treated one Roy Wilson, an injured employee of the B-W Construction Company, on June 8, 1925, and that at Nigro's request plaintiff treated one Spahr, also an employee of the construction company, on July 24, 1925, and one West on August 12, 1925. Plaintiff submitted his bill to Cowgill in each of these three instances, and they were paid by defendant by draft drawn by Cowgill on the Chicago office. However, the undisputed testimony shows that Nigro obtained the prior consent of Cowgill or Popham to the employment of plaintiff in each of these three instances. Dr. Nigro testified that he made his medical reports to Cowgill; that he never employed any specialists or incurred any expense without first getting permission from Cowgill or Popham; that he had no authority from Dr. Kuhn to "do anything"; that his instructions from Kuhn were to "correspond with him and advise him of any serious cases."

Dr. Nigro testified that he told plaintiff before the operation that Roark had been hurt "on the B-W Construction Company job * * * on the Sears-Roebuck building," and that he had "another case from the Sears-Roebuck & Co." Plaintiff testified that before the operation he knew Roark was an employee of the B-W Construction Company and that he had been injured while working for it; that before he operated Nigro told him that "this was an insurance case." Plaintiff further testified that he did not know the extent of Nigro's authority; he did not ask him anything about it; he had no conversation with Nigro concerning plaintiff's bill; he never communicated with the defendant in reference to the case until he presented his bill, and defendant never communicated with him.

Defendant insists that its demurrer to the evidence should have been sustained, for the reason that the undisputed testimony shows that Dr. Nigro had no authority to employ plaintiff; that Nigro did not in fact employ him on behalf of the company (a question which we will hereinafter discuss), and that the petition fails to state any cause of action; that if it alleges any cause of action, it merely alleges employment and does not plead ratification or estoppel. However, if there is any question of ratification or estoppel in the case, the fact that such matters were not pleaded cannot be urged by the defendant because the evidence (if any) upon these subjects was introduced without any objection on the part of defendant. Colley v. Ins. Co., 185 Mo. App. 616, 171 S. W. 663.

We do not think that there is any evidence tending to show that Nigro was authorized expressly or impliedly to employ plaintiff, or that defendant held him out as an agent having authority to employ him. Consequently, the only question in the case is whether or not there is sufficient evidence to show ratification or estoppel by the defendant in permitting plaintiff to continue his attention to Roark, when it knew that plaintiff had operated upon him and was attending him, and that it had such knowledge under...