1. Physicians — Contract of Employment-Persons Liable. An employér who merely summons a physician, and requests him to care for an employé, who has suddenly become ill while engaged in his duties and has been thereby rendered incapable of acting for himself, is not, in the absence of an express stipulation between the employér and the employé that the former shall furnish medical aid to the latter, liable for the services of the physician rendered under such circumstances.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Physicians and Surgeons, § 18.]
Applying to the evidence in this case the rule above announced, the plaintiff was not entitled to recover.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Physicians and Surgeons, § 58.]
(Syllabus by the Court.)
Error from Superior Court, Chatham County; Geo. T. Cann, Judge.
Action by W. E. Norton against John Rourke and others. Judgment for defendants, and plaintiff brings error. Affirmed.
W. E. Norton brought an action against John Rourke & Son, a partnership composed of John Rourke and James A. Rourke, and against James A. Rourke individually, to recover $150 for medical and surgical services claimed to have been rendered by the plaintiff for John Rafferty, an employé of the defendants. The petition alleged that the services were rendered "at the special instance and request of said defendants, as a firm, and of the said James A. Rourke individually, for which services the said defendants and the said James A. Rourke individually then and there undertook and became liable to pay. The said services so rendered were necessary, and the charges there-for are reasonable." On the trial the plaintiff testified: "I am a physician and surgeon, I am licensed to practice under the laws of Georgia. * * * I had occasion to visit the foundry place of John Rourke & Son. * * * Mr. Jim Rourke telephoned me * * * to go down and see a man. He asked if that was Dr. Norton. I said, 'Yes.' He said: 'This is Jim Rourke of Jno. Rourke & Son. Come down. I have another man hurt.' I said: 'All right, I will come down right away.' I say it was Mr. Jim Rourke who telephoned to me because he had telephoned to me about a week before. I recognized his voice immediately. * * * I went down to the wharf and met Mr. Rourke, and he said to me: 'Capt. Rafferty is injured on this boat, and I will show you where he is.' I went with him, and found Capt Rafferty was in his bunk and unconscious. I ordered the ambulance * * * and had him sent home. Afterwards I had him removed to the hospital, and treated him for his injuries. * * * Mr. Jim Rourke told me to do the best I could for the injured man, and I told him that I would. It was his boat, I presume, the man was injured on. He took me down there. * * * I never was Mr. Rourke's regular physician. I have done work for the firm. * * * I had rendered professional services before at the instance of Mr. Jim Rourke. My services had been engaged by Mr. Rourke before over the telephone. Mr. Jim Rourke did the telephoning then. At that time I went down to Mr. Rourke's machine shops. * * * Mr. Rourke asked me where I was going to send Mr. Rafferty. I said I was going to send him home for the present, and watch his condition." The witness further testified as to the nature of Rafferty's injuries, the medical and surgical services rendered, and the reasonableness of the charge made therefor.
John Rafferty, a witness for the plaintiff, testified: "I was employéd on the tugboat Maude. I was master and pilot of the boat. I was working for John Rourke & Son. Mr. James Rourke employéd me. I sustained an injury. * * * I had my skull fractured. I fell, and had my skull broke. I don't know what caused me to fall. When I fell I was about eight miles from here, on the boat. I was sick and asked a man to relieve me at the wheel, and before he came I fell. * * * After I fell I remember nothing. * * * When I came to, I was at the hospital. I was unconscious about a week, I guess. I didn't employ a physician to attend me. When I came to, Dr. Norton was attending me. * * Dr. Norton used to come to my house on some occasions for my stepson. He never was there for me. * * * I had never employéd Dr. Norton for myself. I went myself to the marine doctor when anything happened to me. I would be treated free by the Marine Hospital service. * * * I didn't pay Dr. Norton anything. He has never presented a bill to me. * * * I didn't employ
him or authorize his employment. To have free treatment from the Marine Hospital service, I would have had to go to the Marine Hospital. They would not treat me free if I were home." James G. Rafferty testified for the plaintiff: "Capt. Rafferty is my father. * * * My father was towing mud on the mud sow [at the time he was injured]. * * * I got a message to go down to John Rourke & Sons' place, which I did. I met when I got dt vn there, Mr. Jim Rourke. He asked me who was the family physician, and I said Dr. Norton. He said, 'You better telephone for him.' I said, 'All right, ' and I started to do it and he said to me, 'No; never mind. I will telephone for him myself.' He went off, and I went aboard the boat. I found my father lying in the lower bunk. He was seriously hurt Dr. Norton came there. We put my father in an ambulance, and I went home with him in the ambulance. * * * If I had gone to the telephone when I started, I would have had to walk a couple of hundred feet, I guess. I am a cripple. I walk with a crutch. * * * He [my father] had worked for him [Mr. Rourke] two or three or four months. My father didn't work for him after he got well." James A. Rourke testified for the defendants: "I am a member of two firms. The machine and foundry business has three members in the firm. The firm name is Rourke & Sons. The members of the firm are my father, my brother John, and myself. The firm of John Rourke & Son is composed of my father and myself. This firm owns the tugboat Maude and all floating property—lighters, tugboats, and so forth. This is the firm that owned the tugboat Maude at the time of the injury to Capt. Rafferty. I got down there on the morning this accident happened shortly after 7. Some time after I got down there I saw the engineer of the boat, and then it was I heard of the accident to Capt. Rafferty. I sent a boy after his son. I went to see the old man. He was lying in the bunk. * * * when I saw him the boat was lying at the wharf. * * * When he [James Rafferty] came down, I told him the old man was hurt and asked him what he wanted done. * * * He said, 'Better get the family physician.' I asked who it was. 'Dr. Norton, ' he said. * * * Young James Rafferty is incorrect in his statement that I told him to go and telephone for a doctor, and finally said no, that I would do it for him. I didn't offer to do that telephoning. I didn't do the telephoning at all. I didn't go to the telephone. * * * Harry Singleton, a white man, who was the engineer of the boat, was standing there at the time of this conversation. He went to have the doctor telephoned for. * * * Dr. Norton is not my family physician. He does not do the wont for Rourke & Son. * * * Dr. Owens is my father's physician. I knew that Capt....
