Syllabus by the Court.
An
employer 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 employer 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.]
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.
In an
action against an employer to recover for medical services
rendered an employee, evidence held to require judgment for
defendant.
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 therefor
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
employed on the tugboat Maude. I was master and pilot of the
boat. I was working for John Rourke & Son. Mr. James Rourke
employed 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 employed 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 scow [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 down 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
work for Rourke & Son. *** Dr. Owens is my father's
physician. I knew that Capt. Rafferty was a licensed captain.
All steamboat people get their...