Nigro v. Maryland Casualty Co.

• Decision Date: 03 October 1932
• Docket Number: No. 17552.,17552.
• Parties: NIGRO v. MARYLAND CASUALTY CO.
• Court: Missouri Court of Appeals

53 S.W.2d 414

NIGRO v. MARYLAND CASUALTY CO.

No. 17552.

Kansas City Court of Appeals. Missouri.

October 3, 1932.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by D. M. Nigro against the Maryland Casualty Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Harris & Koontz, of Kansas City, for appellant.

Cowgill & Popham and John F. Cook, all of Kansas City, for respondent.

BOYER, C.

The petition in two counts sought recovery for the reasonable value of medical and surgical services rendered to one Lally, who was injured while in the employ of Abe I. Morris. The latter carried a liability insurance policy with the defendant, Maryland Casualty Company. Plaintiff elected to go to the jury on the second count of the petition, and dismissed the first count. The second count alleges, among other facts, an injury to Lally while in the service of Morris; the existence of the liability policy issued by defendant to protect said Morris against loss from liability imposed by law, and to investigate all cases and settle or defend all claims and suits therefor and to furnish medical and surgical relief for such injuries as it might deem necessary; that defendant undertook to and did furnish at its own cost medical, surgical, and hospital treatment for the employees of said Morris who were injured, including Lally, according to the terms of its said policy; that Lally was injured on the 16th day of December, 1926, and that plaintiff, at the instance and request and under the employment of defendant, undertook the care and treatment of the injuries to said Lally, and that, while so treating him, defendant requested plaintiff to continue said treatment and to report upon the physical condition of said Lally, and to continue to send reports from time to time in reference to the care rendered him; that plaintiff was requested to send said Lally to a hospital and to provide for his care and attention and to call other physicians in consultation; that plaintiff performed the services requested and advised defendant, and, with the knowledge so furnished to defendant, it acquiesced, approved, ratified, and confirmed said employment of plaintiff; that during all of said time defendant knew that plaintiff was rendering valuable medical and surgical attention to said Lally on account of said injuries, made no objection thereto, and allowed plaintiff to continue same, by reason whereof defendant is estopped to deny the employment of plaintiff; that the reasonable value of said services so rendered was the sum of $1,472.60, and for this amount judgment was demanded, with interest and cost. The answer was a general denial.

At the conclusion of the evidence, the case was submitted to the jury upon an instruction given in behalf of the plaintiff which authorized recovery by the plaintiff upon a finding of facts evidencing both an actual and an implied employment of the plaintiff. On behalf of defendant the jury was instructed that plaintiff could recover only for the services rendered at the special instance and request of defendant, and that plaintiff could not recover for any service rendered by him without the direction or acquiescence of the defendant. And the jury was further instructed at the request of defendant that, if it believed that the employment of plaintiff by the defendant was for emergency purposes only, and to determine the character and extent of the injuries, then the recovery should be limited to the reasonable value of such services as were reasonably necessary for the purpose for which he was employed; and that plaintiff could not recover for any services which the jury might find and believe were not within the contemplation of the general employment. The verdict was for plaintiff in the sum of $1,652.60, which appears to be the total amount sued for, together with interest from the date of suit as authorized by plaintiff's instruction.

The points made on appeal are: (1) That the demurrer to the evidence should have been sustained because there was not sufficient evidence to show employment; (2) that instruction No. 1 was erroneous because it permitted recovery for services after March 5, 1927, without sufficient evidence to charge defendant with liability for services after that date; and (3) that the verdict is excessive because it allows compensation for services after March 5, 1927.

The evidence shows that Lally was employed by Morris; that defendant casualty company had issued to said Morris its liability policy as alleged in the petition, and said policy was in force and effect on December 16, 1926; that on the last-named date Lally, while in the course of his employment, sustained severe injuries on account of an explosion of a furnace which he was tending for Morris. Dr. D. M. Nigro, the plaintiff in this case, was one of a number of approved physicians permitted to be used by the assured in case of injury to a person covered by defendant's liability policy. The plaintiff furnished defendant his personal cards bearing the legend: "In case of an accident call Dr. D. M. Nigro, 431 Argyle Building." The agency through which Mr. Morris obtained his policy mailed the policy to him with one of such cards inclosed and bearing instructions to call Dr. Nigro in case of an accident. Mr. Morris had been accustomed to call Dr. Nigro on such cases under similar policies, and called him on this case on December 22, 1926. The patient had been previously treated by his family physician. Dr. Nigro reported the condition of the injured man to the claim department of defendant, and requested permission to move the man to a hospital, which permission was granted. The patient was in the hospital from three to four weeks, and the evidence shows that Dr. Nigro visited him two or three times every day for a long period of time; that at the request of the claim department of defendant he took the man out of the hospital and had him moved to an apartment in order to save expense, and the patient was finally moved to his home. Upon report of the condition of the patient, Dr. Nigro was instructed by the agents of defendant to call an eye specialist and the chief medical adviser of the defendant into consultation, and this was done. In addition to other reports made to defendant, plaintiff made five written reports in the form of letters to the defendant, some of them captioned: "Attention Mr. Miller Claim Department." Mr. Miller was the manager of the claim department of defendant. These reports were made on January 3, 17, 20, February 2, and March 5, 1927. These letters contained various facts in relation to the case; symptoms and condition of the patient; treatment and consultation; progress of the patient, and his location at different times. Practically all of the letters closed with the words: "Will keep you advised as to his progress." The letters referred to the fact that the doctor had talked with Mr. Miller, the claim manager for defendant, on different occasions in reference to the case. There were no more written reports after March 5, 1927. Plaintiff testified that after that date he reported verbally over the telephone several times. He could assign no reason why he did not make further written reports, except that he had reported verbally. He testified: "Well, I just talked with them over the telephone. I just took care of the patient and I never heard any more from the Maryland Casualty Company regarding him and it just seemed like they were disinterested and they said, `Go ahead and take care of him,' and I just went on about my business and took care of him." Plaintiff said he thought it was Mr. Gray who gave him this direction; it may have been some one else, but that he talked with him several times after March 5. Plaintiff did not talk with the manager after that date, and could not fix any specific date after March 5, 1927, upon which he reported or talked to any one in defendant's office.

It further appears that the injured man instituted a suit against his employer in the month of February, 1927, but plaintiff claims that he was not aware of this fact when he made his last written report to the company. His evidence is to the effect that he was never directed at any time by any one to cease his treatment of the injured man after his last written report or after the institution of the lawsuit, but that he continued to attend and treat the patient at his home and at the doctor's office continuously until some time in the month of December, 1928, at which time the patient died. The treatment administered and the surgical service performed included eight operations, known as aspirations, for the purpose of removing fluid from the lungs or from the pleural cavity. Artificial light and electric treatments and intravenous injections were administered to stimulate the blood. The visits and treatments were described in detail, and the reasonable value of the medical and surgical services rendered during the whole period was shown by the testimony of other doctors to be in excess of the amount claimed by the plaintiff.

It appears that the Maryland Casualty Company, the defendant in this case, defended the suit brought by the injured man against his employer. While that suit was pending, the deposition of Dr. Nigro was given about February, 1928. In May, 1928, Dr. Nigro sent a bill to defendant for his services to that time in the amount of $1,287. Apparently no attention was paid to it by defendant, and there is no denial that the bill was received. The lawsuit of the injured man was pending, and was not tried for some months thereafter and shortly before his death. Plaintiff's evidence is to the effect that no one for defendant, nor its assured Morris, ever notified him to discontinue treatment of the injured man. Early in the history of the case, and after plaintiff had been instructed to call the chief surgeon into...