Sheehan v. Elliott Mfg. Co.

• Decision Date: 05 March 1929
• Citation: 145 A. 139
• Parties: SHEEHAN v. ELLIOTT MFG. CO.
• Court: New Hampshire Supreme Court

145 A. 139

SHEEHAN

v. ELLIOTT MFG. CO.

Supreme Court of New Hampshire. Hillsborough.

March 5, 1929.

Transferred from Superior Court, Hillsborough County; Burque, Judge.

Action by George T. Sheehan against the Elliott Manufacturing Company. Verdict was directed for defendant, and the case was transferred upon plaintiff's exception to denial of his motion to set aside the verdict. Exceptions overruled.

Assumpsit, to recover for medical services rendered by the plaintiff to one of the defendant's employees, who was injured while in the performance of his duties. When the accident was reported to the company's office, the defendant's superintendent called the plaintiff, a practicing physician, by telephone, asking him to come and attend the injured employee. The doctor came, found the employee at the company's plant, and was told by the superintendent "to do all that was necessary for the man." The doctor ordered the patient taken to the hospital, and attended him. After the recovery of his patient, the plaintiff presented a bill for services to the defendant. The company refused to pay on the ground that its superintendent had no authority to, bind the company for medical treatment rendered to one of its injured employees. The evidence is not transferred, and the foregoing are all the facts reported.

The court made the following ruling and order: "There being no evidence offered to show such authority, and the Court believing the law to be that there generally is no implied authority conferred upon a Superintendent to bind the principal in contracts of this nature is of the opinion that a verdict must be entered for the defendant, and so orders." Transferred upon the plaintiff's exception to the denial of his motion to set aside the verdict as against the law and the evidence.

John S. Hurley, of Manchester, for plaintiff.

Warren, Howe, & Wilson, of Manchester, for defendant.

SNOW, J. No question is raised as to procedure. It appears to be conceded that the record is designed (Gerry v. Neugebauer, 83 N. H. 23, 25, 136 A. 751) to present the questions (1) of the validity of the court's ruling of the general want of implied authority in a superintendent to bind his principal in contracts of the nature here involved; and (2) of the sufficiency of the facts reported to support the court's verdict.

1. There was no error in the court's ruling. The superintendent or foreman of a business firm or corporation ordinarily has no implied authority to employ a surgeon or physician at the expense of the company to attend an injured employee. King v. Forbes Lith. Mfg. Co., 183 Mass. 301, 302, 67 N. E. 330; Ward v. Samuels, 37 R. I. 438, 442, 93 A. 649, Ann. Cas. 1918A, 783; Terre Haute & Ind. R. R. Co. v. McMurray, 98 Ind. 358, 49 Am. Rep. 752; Cushman v. Coal & Mining Co., 170 Ind. 402, 405, 84 N. E. 759, 16 L. R. A. (N. S.) 1078, 127 Am. St. Rep. 391; Sourwine v. McRoy Clay Works, 42 Ind. App. 358, 359, 85 N. E. 782; Holmes v. McAllister, 123 Mich. 493, 496, 82 N. W. 220, 48 L. R. A. 396. See Swazey v. Union Mfg. Co., 42 Conn. 556, 559. A sufficient reason is to be found in the fact that there is nothing in the nature of the ordinary employment to prevent an employee from being just as capable, save for the difference in financial position (which the common laws regards of no moment), to supply himself with the necessary aid, as the employer is to supply him. See 56 U. Pa. L. R. 217, 237.

The plaintiff appears to concede the general rule and seeks to support his claim of authority in the superintendent on the ground of an exceptional or emergency doctrine which prevails in some jurisdictions, and which may be thus briefly and broadly stated: When an employee, engaged in a hazardous occupation, suffers an accidental injury necessitating prompt surgical or medical relief which he is himself incapable of supplying, the highest officer of the employer present is deemed to possess implied authority to bind his principal by contract for such immediate relief as the urgency of the situation demands. 21 R. C. L. Pr. & Agt. § 47; Terre Haute & Ind. R. R. Co. v. McMurray, 98 Ind. 358, 369, 371, 49 Am. Rep. 752; Chicago & Alton R. R. Co. v. Davis, 94 Ill. App. 54; Salter v. Nebraska Tel. Co., 79 Neb. 373, 376, 112 N. W. 600, 13 L. R. A. (N. S.) 545. Where the doctrine prevails, the principle is generally held to be applicable irrespective of the fault of either the defendant or the injured person.

This doctrine has been applied most commonly in cases of injuries to railroad employees occurring at points more or less remote from the head office of the company (Terre Haute & Ind. R. R. Co. v. McMurray, supra; Arkansas Southern R. R. Co. v Loughridge, 65 Ark. 300, 45 S. W. 907), and, as respects railroads, has been extended to injuries to passengers (St. Louis A. & T. R. Co. v. Hoover, 53 Ark. 377, 13 S. W. 1092), to strangers (Bonnette v. St. Louis, I. M. & So. R. Co., 87 Ark. 197, 112 S. W. 220, 16 L. R. A. (N. S.) 1061, 128 Am. St. Rep. 30), and, under some circumstances, even to trespassers (Vandalia R. Co. v. Bryan, 60 Ind. App. 223, 110 N. E. 218).

Upon the question of the extension of the doctrine to cases of injuries to employees of companies other than railroads, there is a decided conflict of authorities. Some courts treat the rule as applicable exclusively to railroads (Godshaw v. Struck, 109 Ky. 285, 58 S. W. 781, 51 L. R. A. 668), which are said to occupy a peculiar position, "exercising quasi public functions, clothed with extraordinary privileges, carrying their employees necessarily to places remote from their homes subjecting them to unusual hazards and dangers," and therefore are to be distinguished from corporations whose business is stationary. Chaplin v. Freeland, 7 Ind. App. 676, 34 N. E. 1007; Cushman v. Coal & Mining Co., 170 Ind. 402, 407, 84 N. E. 759, 16 L. R. A. (N. S.) 1078, 127 Am. St. Rep. 391; Sourwine v. McRoy Clay Works, 42 Ind. App. 358, 359, 85 N. E. 782. In other jurisdictions the doctrine has been treated as extending to companies engaged in any business dangerous to its employees. Salter v. Nebraska Tel. Co., supra. If, however, it be once conceded that the doctrine is applicable to railroads it has been thought to be difficult to see why, under like circumstances, it is not applicable to other companies, to partnerships, and to individuals. 1 Mechem, Agency, § 341. See 4 L. R. A. (N. S.) note, page 66. Courts which impliedly recognize such extension of the doctrine, have denied it application where there was a lack of clear proof of the hazardous nature of the employment (Holmes v. McAllister, 123 Mich. 493, 82 N. W. 220, 48 L. R. A. 396), or where there was a want of evidence of an extreme emergency calling for immediate medical or surgical attendance (King v. Forbes Lith. Mfg. Co., 183 Mass. 301, 302, 67 N. E. 330).

There has been likewise a diversity of opinion as to the grounds upon which the doctrine rests. Courts holding to the rule have sometimes sought to justify it as based on a duty imposed upon the employer by the broad principles of humanity and justice (Terre Haute & Ind. R. R. Co. v. McMurray, supra, Chaplin v. Freeland, supra), and sometimes as founded on some advantage to the agent's employer, such as the speedy recovery of its skilled servants (Union P. R....