Ward v. J. Samuels & Bro., Inc.

• Decision Date: 07 April 1915
• Docket Number: No. 4684.,4684.
• Citation: 93 A. 649,37 R.I. 438
• Parties: WARD v. J. SAMUELS & BRO., Inc.
• Court: Rhode Island Supreme Court

93 A. 649

37 R.I. 438

WARD

v. J. SAMUELS & BRO., Inc.

No. 4684.

Supreme Court of Rhode Island.

April 7, 1915.

Vincent and Parkhurst, JJ., dissenting.

Exceptions from Superior Court, Providence and Bristol Counties; John Doran, Judge.

Action by John T. Ward against J. Samuels & Bro., Incorporated. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled, and case remitted for judgment.

McGovern & Slattery, of Providence, for plaintiff. Wilson, Gardner & Churchill, of Providence, for defendant.

SWEETLAND, J. This is an action to recover compensation for professional services performed by the plaintiff, as a physician, in the treatment of John McHenry an employé of the defendant. The case was tried before a justice of the superior court sitting with a jury. The jury returned a verdict in favor of the plaintiff for the full amount of his claim. The case is before us upon the defendant's exceptions to certain rulings of said justice made in the course of the trial, and to the decision of said justice denying the defendant's motion for a new trial.

The defendant conducts an extensive retail department store in Providence known as the Manufacturers' Outlet Company, and employs therein a large number of salesmen and other servants. In 1910, at the time said professional services were rendered, the management of said store was in a superintendent named Steiner and an assistant superintendent named Solomon. In case of physical injury to an employé or a customer in. said store the defendant had instructed its superintendent and assistant superintendent to immediately summon and employ a physician to attend the injured person. The defendant claimed, however, that the authority of its superintendent and assistant superintendent in that regard was limited to the employment of a physician to render first aid, so called, to the person injured, and that they wore without authority to bind the defendant for the further medical treatment of such injured person. For more than two years before rendering the services which are the subject of this suit, the plaintiff had been summoned from time to time by said assistant superintendent, Mr. Solomon, to attend persons who were sick or injured in said store. Both Mr. Steiner and Mr. Solomon testified that they informed the plaintiff of the limitation upon their authority to bind the defendant for the services of physicians; and they further testified that at different times, and especially at the beginning of the services now in question, they warned the plaintiff that he would not be paid by the defendant for any professional treatment beyond first aid which he might render in cases to which he was called by them. The plaintiff denied that he received such information and warning, or that he knew of any limitation placed upon the authority of Mr. Steiner or Mr. Solomon to bind the defendant in said transactions. The question of the plaintiff's knowledge as to the extent of the authority of the defendant's superintendent and assistant superintendent was therefore one for the determination of the jury. In the summer of 1910 the said John McHenry, a boy in the employ of the defendant, was severely injured while upon one of the elevators in the defendant's store. Mr. Solomon, who was at that time acting as superintendent, in the absence of Mr. Steiner, notified the plaintiff, and sent the McHenry boy to the plaintiff's office. During the first treatment Mr. Solomon came to the plaintiff's office, and afterwards carried John McHenry to his home in an automobile. The plaintiff continued the treatment of McHenry until he was cured, making charges for said service against the defendant upon his books of account.

The contention of the defendant is that there is no evidence in the case of express authority given by it to Mr. Solomon to employ the plaintiff, or any other physician, for the entire treatment of John McHenry; that, properly, authority cannot be implied in Mr. Solomon as assistant superintendent or as acting superintendent to engage a physician to attend an employs of the defendant injured in its service; and that there are no other circumstances in the case which warrant the finding that the defendant is liable on any claim of the plaintiff beyond the charge for the first treatment given by the plaintiff to John McHenry.

At the close of the testimony the defendant moved that said justice direct a verdict for the plaintiff for $25 only; that sum being the amount of the plaintiff's charge for his first treatment of John McHenry. The motion was denied, and the defendant excepted. After verdict the defendant moved for a new trial on the ground that said verdict was contrary to the evidence and the weight thereof. This motion was denied and the defendant excepted. We will consider these two exceptions together.

The only evidence in the case as to the actual authority of Mr. Steiner and Mr. Solomon in this matter is contained in the testimony given by them. They both testify that their authority was limited to the power of hiring a physician for first aid to employés or others sick or injured in said store.

As a general rule, the superintendent of a mercantile corporation has not implied authority to bind said corporation to pay for the services of a physician whom such superintendent has called to attend an employé of the corporation who has been injured in the course of his employment. Some cases have held that a superintendent or a superior servant of a railroad company, by reason of the peculiar nature of its business, has implied authority to bind said company for a physician's first aid services, rendered to injured employés, but to no greater extent. This court, however, in Hall v. N. Y., N. H. & H. R. R., 27 E. I. 525, 65 Atl. 278, has held that, in case of the employment, by an unauthorized agent of a corporation, of a physician to attend one of the servants of said corporation who has been injured in the course of his service, without restriction as to the extent of the medical attendance to be given by said physician, the corporation, after notice of such employment, by its conduct and by its silence, may be held to have ratified the acts of its agent, or to be estopped from denying the agent's authority. In that case it appeared that the plaintiff had been called to attend an injured employé of the defendant by one of its station agents who was not shown to have authority in the premises; that the plaintiff took charge of the sufferer, and on the next day prepared a written report setting out the fact that he had been called by said station agent, and containing a brief statement of the injured man's condition. This report the plaintiff sent to the principal office of the defendant by one of its foremen. In said report the plaintiff did not specifically notify the defendant that he should continue in charge of the case, or that he should look to the defendant for his pay. It also appeared that on two occasions the claim agent of the defendant and its physician visited the injured man to learn his condition; that at the completion of his service the plaintiff sent bills for the same to the defendant, which took no notice of them. The court said, at page 530, of 27 R. I., at page 280 of 65 Atl.:

"Whether the facts and circumstances surrounding the transaction do or do not constitute a ratification upon the part of the corporation is a question of fact to be determined by the jury under proper instructions from the court."

The court sustained a verdict for the plaintiff for the full amount of his claim. The defendant in that case was a railroad company, but the rule therein recognized is one of general application. Also, notwithstanding the absence of actual authority in the agent and the unwillingness of the law to imply such authority from the nature of the agent's general powers, nevertheless the corporation by its previous conduct may have so held the agent out as one having full authority to employ physicians that it will not be permitted later to disavow the agent's acts in that regard.

It is the contention of the plaintiff that, whatever may have been the real powers of Mr. Solomon, the verdict of the jury was warranted upon the testimony as to previous transactions of a similar character between the plaintiff and the defendant, and also upon the testimony as to the defendant's silence after it had notice that the plaintiff, in the circumstances of the case, was proceeding to perform the services for the payment of which he now sues.

We are of the opinion that there was evidence before the jury which, if believed by them, supports both of these contentions of the plaintiff. There was testimony from which the jury might find that Mr. Solomon had authority to employ physicians to attend defendant's servants injured in its store; that for more than two years before the case of McHenry the plaintiff had attended a large number of the defendant's servants upon the call of Mr. Solomon without knowledge on the part of the plaintiff of the limitation upon Mr. Solomon's authority, which is now claimed; that the plaintiff had given to said injured servants the medical attention which their cases required, whether of first treatment or more; that in every case the charges for said services had been made by the plaintiff against the defendant alone, and bills for the same had been rendered to it; that the defendant, through its responsible agents, was aware of these facts; that in every case the plaintiff's charges against the defendant had been paid either by the defendant itself or through its agency in such a manner as to give no notice to the plaintiff that the defendant questioned its liability to him. The defendant denies that the testimony shows the last fact in cases in which there were services rendered by the plaintiff in addition to first aid. It appears that there was a distinct corporation known as the Outlet Mutual Benefit...