Weinsberg v. St. Louis Cordage Company
| Decision Date | 23 February 1909 |
| Citation | 116 S.W. 461,135 Mo.App. 553 |
| Parties | WEINSBERG, Respondent, v. ST. LOUIS CORDAGE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
AFFIRMED.
Judgment affirmed.
Wm. H. & Davis Biggs for appellant.
The general rule that where a person requests the performance of a service and the request is complied with and the service is performed, the law raises an implied promise to pay the reasonable value of the services, does not obtain where one person requests a physician to perform services for a patient, unless the relation of the person making the request to the patient is such as raises a legal obligation on his part to call in a physician and pay for the services. Meisenbach v. Cooperage Co., 45 Mo.App. 232; Jesserich v. Walruff, 51 Mo.App. 270; Rankin v Beale, 68 Mo.App. 325. In other jurisdictions Spelman v. Gold Mining Co. (Mont.), 55 L. R. A. 640; Boyd v. Sappington, 4 Watts (Pa.), 247; Veitch v. Russell, 3 Ad. & Ell. (N. S.) 927; Sellen v. Norman, 4 Car. & P. 80; Crane v. Baudouine, 55 N.Y. 256; Smith v. Watson, 14 Vt. 332; Deane v. Gray Bros. Co., 109 Cal. 433; Railroad v. Taft, 28 Mich. 289; Godshaw v. Struck (Ky.), 51 L. R. A. 668; Dorion v. Jacobson, 113 Ill.App. 564; Holmes v. McAllister (Mich.), 48 L. R. A. 398. Even though it be conceded that an express promise on the part of the defendant to pay plaintiff for his services is not necessary and that the law will imply a promise from the mere request, still the defendant corporation under the evidence could not be bound by the unauthorized act of its president, Crosby, conceding that Crosby requested the services for the company, as he was not shown to have express authority to bind the defendant to pay for medical services given an injured employee, nor did he have implied authority, such matter being entirely without the scope of his authority. Tucker v. Railroad, 54 Mo. 177; Brown v. Railroad, 67 Mo. 122; Mayberry v. Railroad, 75 Mo. 492; Spelman v. Mining Co. (Mont.), 55 L. R. A. 640; Holmes v. McAllister (Mich.), 48 L. R. A. 396; Godshaw v. Struck (Ky.), 51 L. R. A. 668; Harris v. Fitzgerald, 56 A. 315; Railroad v. Gray, 22 Florida 356; Railroad v. Hoover, 53 Ark. 377; Railroad v. Morris, 67 Ill. 295; Canney v. Railroad, 63 Cal. 500.
B. R. Brewer and Ben. J. Wolf for respondent.
(1) The court complied with defendant's request for special findings of fact, in regard to the question of negligence, when it found that the defendant had introduced no evidence of negligence by the injured and therefore the law would presume that the employee was not negligent. Goff v. St. Louis Transit Co., 98 S.W. 49. (2) This was a case in which there was a legal duty owing by the defendant to the injured, to furnish medical aid, and therefore defendant was liable for such services. Reynolds v. Railroad, 90 S.W. 100; Evans v. Mining Co., 100 Mo.App. 670; Hayes v. Railroad, 95 S.W. 299. (3) It was in the scope of the authority of the president of defendant company to employ the plaintiff. Beach on Private Corporations, p. 345; Smith v. Smith, 62 Ill. 496; Freeman v. Bakery Co., 103 S.W. 565.
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 employees, 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 employee 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:
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