Weinsberg v. St. Louis Cordage Co.

• Decision Date: 23 February 1909
• Citation: 135 Mo. App. 553,116 S.W. 461
• Parties: WEINSBERG v. ST. LOUIS CORDAGE CO.
• Court: Missouri Court of Appeals

116 S.W. 461

135 Mo. App. 553

WEINSBERG v. ST. LOUIS CORDAGE CO.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. CORPORATIONS (§ 407)—AUTHORITY OF OFFICERS—EMPLOYMENT OF PHYSICIAN FOR INJURED EMPLOYÉ.

The president of a domestic manufacturing corporation has implied authority to employ a

physician, at the expense of the corporation, to attend an employé injured in the line of his employment.

2. PHYSICIANS AND SURGEONS (§ 13)—CONTRACT OF EMPLOYMENT.

Where a physician renders services to one at the mere request of a third person, on whom no obligation to provide therefor rests, the law will not imply a contract binding the third person to pay therefor.

3. CONTRACTS (§ 4)—IMPLIED CONTRACTS.

The law will not imply a contract, where there is an actual contract, though it is not express.

4. CONTRACTS (§ 1)—REQUISITES.

An agreement between competent persons on a sufficient consideration to do or not to do a particular thing is a contract.

5. CONTRACTS (§ 4)—"CONTRACT IMPLIED BY LAW"—"CONTRACT INFERRED FROM FACTS."

A "contract implied by law" results from a legal fiction, used for the sake of the remedy it affords, and may obtain contrary to the intention of the parties, or in the absence of any intention, while a "contract inferred from facts" is an actual contract, resulting from an actual meeting of the minds of the parties as shown by the facts.

6. PHYSICIANS AND SURGEONS (§ 13)—EXISTENCE OF CONTRACT—EVIDENCE.

Where the president of a manufacturing company directed a physician to attend an employé injured in the line of his employment, and intended that the corporation should pay therefor, which the physician did, intending to look to the corporation for compensation, there was an actual contract between the corporation and the physician, and the law implied that the physician could recover a reasonable compensation.

7. CORPORATIONS (§ 407)—CONTRACT OF EMPLOYMENT—EVIDENCE.

The right of a physician, employed by the president of a manufacturing corporation to treat an employé severely injured in the line of his employment, to recover from the corporation is not affected by the fact that the employé was not injured through the negligence of the corporation.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Dr. Charles H. Weinsberg against the St. Louis Cordage Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Wm. H. & Davis Biggs, for appellant. Ben. J. Wolf and B. R. Brewer, for respondent.

NORTONI, J.

This is a suit by a physician and surgeon, in which he seeks to recover compensation for surgical services rendered in performing an operation upon one of the defendant's employés, at the instance and request of the president of defendant company. A jury being waived, the cause was tried before the court. Plaintiff recovered, and the defendant appeals.

It appears the defendant is a corporation engaged in the manufacture of rope and twine. Its mills are located in the city of St. Louis. One Valuka received serious injuries, from which he afterwards died, while in the employ of the defendant in its factory. Upon receiving the injury Valuka was brought from the defendant's factory into the office of its timekeeper. Defendant's assistant timekeeper ran to the office of the plaintiff, Dr. Weinsberg, which was located near thereto, in search of a surgeon. In response to his request Dr. Weinsberg immediately waited upon the injured man in the timekeeper's office. Upon a cursory examination of his condition the doctor inquired of the assistant timekeeper what the company desired he should do with the patient. The doctor said he was very seriously injured, and should be taken to a hospital at once, at the same time inquiring whether the company desired he should attend the patient at the City Hospital, or at some private institution. The assistant timekeeper replied that he was without authority in that behalf, and that he would communicate with Mr. Crosby, the president of the company for authority. It seems the main office of the defendant company was about a block distant from the office of the timekeeper. The evidence on the part of plaintiff tended to prove that the assistant timekeeper repaired to the telephone and called for Mr. Crosby, who was then at the main office of the company. Having received an answer by telephone from the main office, the timekeeper informed the person who responded of the catastrophe, the serious condition of Valuka, the injured man, and that Dr. Weinsberg was then present, and desired authority from the company to proceed with the case, inquiring, too, whether the company desired the patient removed to the City Hospital, or whether it desired that he should remove him to and attend him at the Lutheran Hospital, which was not far distant from the timekeeper's office. The assistant timekeeper, having thus communicated with the person answering the telephonic request for Mr. Crosby at the main office, instructed plaintiff that Mr. Crosby said he should remove the patient to the Lutheran Hospital, and there treat him. Thereupon Dr. Weinsberg requested an ambulance at once, and the assistant timekeeper called one. The patient was then removed to the Lutheran Hospital. The case being one which required assistance, Dr. Weinsberg called in Dr. Amerland to aid him. Dr. Weinsberg and his assistant performed an operation, for which he made a charge of $200. It seems Dr. Bishop was the regularly employed physician of the company. She was not present at the office at the time of the injury, nor did she participate in the operation. It appears Dr. Bishop having had some conversation with Mr. Crosby the president of the company, about the matter, Mr. Crosby called the following morning at the office of the plaintiff and discussed the case with him. Mr. Crosby suggested that he preferred Dr. Bishop should have charge of the case from that time forward. Dr. Weinsberg replied that, so far as his charges were concerned, they would not be increased any by his subsequent attendance; that inasmuch as he had performed the operation, he would like to continue with the case in company with Dr. Bishop. To this Mr. Crosby replied that he had no reference to the matter of expense, but that it was a mere preference of physicians, as Dr. Bishop was the company's regular medical attendant, and that Dr. Weinsberg might consult Dr. Bishop and arrange as they saw fit touching the matter of his continuing with the case. It is to be inferred that the doctors made some such an agreement, as it appears they were both present immediately before the patient died. In due course, after the operation, Dr. Weinsberg sent a bill of $200 therefor to the defendant company. In response to this Mr. Crosby wrote him a polite letter, the purport of which was to the effect that his bill had been received, and referred to their Dr. Bishop for attention. There is no suggestion in this letter that the charge was either too high, or that the company did not owe it. A few days thereafter Mr. Crosby sent an employé to Dr. Weinsberg's office with instructions to settle with him, provided he would reduce the amount of his bill. It was said the bill was too high, and Mr. Crosby said it would be paid if reduced to a reasonable amount. When on the witness stand Mr. Crosby admitted having received notice of Valuka's injuries prior to his being conveyed to the hospital. His testimony is to the effect that he received the substance of Dr. Weinsberg's message through Mr. McEnnis, secretary of the company, who informed him of Valuka's injuries, and of the inquiry for authority to place the injured man in charge of Dr. Weinsberg and convey him to the Lutheran Hospital, and that, although he personally did not communicate with the timekeeper's office over the telephone, he authorized Mr. McEnnis to give directions which were afterwards received and acted upon by Dr. Weinsberg.

Defendant's counsel having requested the court for a separate finding of facts and conclusions of law, under our statute to that effect, the court found the facts and pronounced its conclusions of law thereon as follows:

"This is a suit brought by the plaintiff, who is a physician and surgeon, to recover the value of his services in performing an operation upon one of defendant's employés, who was hurt while employed by the defendant corporation. At the request of defendant's counsel, I make the following finding of facts:

"I find that, on March 1, 1905, the plaintiff performed a surgical operation upon one Frank Valuka, who was injured on that day in the factory of defendant, while employed there by the defendant. There is no testimony showing how or under what circumstances the employé, Valuka, was injured.

"I find that the main office of the company was a little more than a block away from the factory where the employé was injured. I find that at the time of the injury Crosby, the president of the defendant company, was at the main office, and there received notice of the accident and injury soon after it occurred, either by telephone, or directly from the secretary of the company, McEnnis, and that a physician other than the regularly employed physician of the company had been called in. I find that immediately after the accident some one connected with the factory went to the office of Dr. Weinsberg and told him of the accident, and requested him to come and attend the injured man. I find that this person had no authority to employ the plaintiff.

"I find that when the plaintiff reached the injured man in the room adjoining the office in the factory he found that his abdomen had been torn open, and that the bowels were protruding from the abdominal cavity, and several ribs had been broken, and the heart and lungs were exposed.

"I find that the plaintiff, after examining the patient, inquired of the clerk in the office whether they wanted the patient sent to the City Hospital or a private hospital, and...