Omaha General Hospital v. Strehlow

• Decision Date: 29 May 1914
• Docket Number: 17,688
• Citation: 147 N.W. 846,96 Neb. 308
• Parties: OMAHA GENERAL HOSPITAL, APPELLANT, v. ROBERT C. STREHLOW, APPELLEE
• Court: Nebraska Supreme Court

147 N.W. 846

96 Neb. 308

OMAHA GENERAL HOSPITAL, APPELLANT, v. ROBERT C. STREHLOW, APPELLEE

No. 17,688

Supreme Court of Nebraska

May 29, 1914

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Reversed.

REVERSED.

William Baird & Sons, for appellant.

Greene Breckenridge, Gurley & Woodrough, contra.

FAWCETT J. BARNES, ROSE and SEDGWICK, JJ., not sitting.

OPINION

FAWCETT, J.

Plaintiff is a corporation for the purpose of carrying on a general hospital business for pay. Defendant was a building contractor. In March, 1910, John T. Anderson, one of defendant's employees, while engaged in work for defendant, fell from a trestle and was seriously injured. Upon receiving such injury he was taken by defendant's regular physician to plaintiff's hospital, where he remained and received surgical and hospital treatment until October following, when he died. This action was instituted in the district court for Douglas county against defendant to recover for such services. There was a trial to the court without the intervention of a jury. Judgment was entered for plaintiff in the sum of $ 15, from which it appeals.

The petition alleges the above facts in customary language; alleges that Anderson was in the hospital for 29 weeks; that plaintiff received him into its hospital at the instance and request of defendant, and relying solely upon the credit of defendant, and prays judgment for the sum of $ 320. The answer admits that defendant was engaged in the contract business; that Anderson was in his employ and received an injury at the time stated in the petition, and that Anderson "went to said Omaha General Hospital for care and treatment;" but denies that he was sent to the hospital or kept there at the request of defendant; alleges that on several occasions he informed the general manager of plaintiff that he (defendant) would not pay or guarantee the payment of the hospital charges for Anderson.

The errors assigned are that the court erred in not entering judgment for plaintiff for the full amount of its claim, for the reason that the evidence shows that defendant's doctor had authority to place Anderson in the hospital and to bind defendant for the payment of the hospital bill; that the evidence shows that defendant had knowledge of and acquiesced in the placing of Anderson in the hospital "and ratified all his agent's (Doctor Ward's) acts in connection therewith, and is estopped from denying his liability on this hospital bill."

The finding and judgment of the trial court were based upon the theory that defendant was only liable to plaintiff for emergency treatment, and the sole question involved is the correctness of that holding upon the evidence in the record before us. Doctor Ward, who acted for defendant at the time, departed this life prior to the trial of the court below. Anderson was also dead. The evidence as to what transpired after the accident and at the time of taking Anderson to the hospital is given by defendant himself and by the general manager of the hospital. Defendant testified that Anderson was in his employ; that in trying to climb a trestle he fell and broke his leg; that he was not present, but was in his home nearby; that he was called from his home to the scene of the accident. "Q. What did you do after you were called over there? A. I called at once to my doctor and told him to come at once, a man was hurt there. Q. Who was your doctor? A. Dr. Ward. * * * Q. What did you state to Dr. Ward? A. I just simply told him through the phone to come and take care of the injured man. Q. He came, did he? A. Yes; he came at once. Q. Dr. Ward was your regular physician? A. Yes, sir. Q. Was this man Anderson able to get about at that time? A. No; while I called for the doctor somebody called for the ambulance, and they took care of him in the ambulance." This is all the evidence in relation to what was said by defendant to Doctor Ward.

Mr. Robel, the manager of plaintiff, testified that Anderson was brought to the hospital on March 25, 1910, and remained there until October 14. "Q. Who brought him to the hospital? A. Dr. Ward. Q. Dr. Ward to which Mr. Strehlow has testified? A. Yes; now deceased. Q. Will you state the fact as to whether you had any conversation with Dr. Ward as to who was to pay for this man's injury in the hospital? A. I did have such conversation. Q. Will you kindly state to the court--state the conversation, or the substance thereof, as you may remember it? A. Dr. Ward informed me that Mr. Strehlow would be responsible for the payment of the hospital bill of Mr. Anderson; that he was employed by Mr. Strehlow to look after his men, and had been ordered by him to take Mr. Anderson to the hospital. Q. Then, if I understand you correctly, Dr. Ward informed you that Mr. Strehlow would pay you for the services that the hospital rendered? A. Yes, sir." This is all of the evidence as to what was said by Doctor Ward at the time he placed Anderson in plaintiff's hospital. Mr. Robel was then interrogated as to a conversation he had with defendant about five days after Anderson was taken to the hospital, as follows: "Q. Will you state that conversation as you remember it, or the substance of it? A. Mr. Strehlow stated to me that he wished to state that he wouldn't be responsible for the payment of the John F. Anderson account 'from now on.' My reply was that we had been holding him responsible for the payment of it and would continue to do so. To which he replied, 'You fight it out with the insurance company.' My reply to that was that we had no fight with the insurance company; the hospital didn't pay the premium for the protection of his men; if there was any fight in connection with the case, of course it must be with him. Q. That was all, was it, of the conversation? A. That was all."

The evidence clearly establishes the fact that from the time Anderson was taken to the hospital until the moment of his death there never was a time when he could have been safely removed therefrom. The injury proved to be a very serious one. A number of necessary operations were performed but, in spite of all the well-known skill of Doctor Ward, Anderson died. There is no evidence that defendant at any time, subsequent to his interview with Mr. Robel, offered to remove Anderson from the hospital, nor was any evidence offered by defendant to show that Anderson was possessed of any property or funds from which plaintiff could have recovered pay for its services. It is contended by defendant that Doctor Ward had no authority to bind defendant for the payment of Anderson's hospital charges. We think this contention is unsound. According to defendant's own testimony, he placed no limitation upon his instructions to Doctor Ward, who was his regular doctor. He called him "and told him to come at once, a man was hurt." When asked what he stated to Doctor Ward, he testified: "I just simply told him through the phone to come and take care of the injured man." He showed that, while he was telephoning, somebody--evidently some of his other employees--called for the ambulance. He knew, therefore, that...