180 Mo. App. 672 | Mo. Ct. App. | 1914
This is a' suit on an account for the services of three physicians and surgeons. Plaintiff recovered and defendant prosecutes the appeal.
It appears that, defendant, an incorporated company, owns and operates a stone quarry in St. Francois county. Theodore Anderson, who was in its employ at the quarry,, was severely injured, as the result of an explosion, so as to occasion the amputation of both of his hands. Defendant’s president, Gottlieb Eyerman, Jr., was in St. Louis at the time, as was also A. H. Schmalz, its secretary, treasurer and general manager. James Nossit, defendant’s foreman, was in charge of the work at the quarry in St. Francois county at the time Anderson received his injury, and immediately took him to the office of Dr. Shannon for treatment. Thereupon Dr. Shannon, with the consent and acquiescence of Nossit, called in Dr. Renfro to assist in caring for the injured man. The injury was a serious one to both arms, and it was obvious that an extensive operation was required. Neither Dr. Shannon nor Dr. Renfro was prepared to undertake the operation, for, it is said, they did not possess the necessary instruments, and Nossit thereupon sent a telephone message to plaintiff, Dr. Newberry, at Fredericktown, to come at once and undertake it. Plaintiff inquired concerning the matter of compensation for his services and Nossit instructed that the company would settle the bill. Immediately Nossit called up Mr. Schmalz, secretary, treasurer and general manager of defendant company, at St. Louis, over the long distance telephone, and informed him of the injury to Anderson, its serious character, and the fact that he had called in the three physicians to care for him.
Nossit testifies that Mr. Schmalz fully approved of all that he had done in the matter, and told him to employ some one competent to operate upon Anderson, and to have the “local physicians” treat and care for the patient and that Mr. Schmalz further said;
*675 “After you get through with him, if you and his folks and the physicians decide to bring him to St. Louis, bring him on the first train, in the morning, and I will meet him.” Nossit says he informed Mr. Sehmalz over the telephone that he then had the patient at Dr. Shannon’s office in the care of that physician and Dr. Eenfro, and that he had called plaintiff, Dr. Newberry, to come and perform the operation and that Dr. New-berry was on the road in answer to his request. It appears from the testimony of Mr. Sehmalz that he was in company with Mr. Eyerman, the president, when the telephone call came and that he consulted him thereabout; that he and Mr. Eyerman concluded it was best to bring Anderson to St. Louis and have him treated and attended to in the city at one of the hospitals. Mr. Sehmalz said he so instructed the foreman, Nossit, over the telephone at the time, and told him to bring the patient on the morning train for medical and surgical care in the hospital in the city. About the same time, Mr. Sehmalz called up the Mullanphy Hospital over the telephone and arranged for a room for Anderson, and he went to the Union Station the following morning with a view of meeting Nossit and the «patient. Sehmalz says he intended to transport the injured man to the hospital in an ambulance and have him cared for there. Dr. Eenfro and Dr. Shannon assigned their accounts to Dr. Newberry and he prosecutes the suit against defendant in three separate counts — one on the demand of each physician on the contract of employment made with Nossit, representirig the company.
, It is insisted the court should have directed a verdict for defendant because Nossit was without authority to employ physicians, but it is obvious the argument is fallacious. Though it may be that Nossit possessed no authority to employ physicians in virtue of his position as foreman, it appears that he was fully authorized at the time by the general manager who
The mere fact that there is a discrepancy between the testimony of Nossit and that of the general manager and president as to whether or not the patient was to be brought to St. Louis for treatment after temporary relief was afforded, avails nothing here. This was matter for the jury alone, for it resides with that tribunal to give judgment upon the credibility of the witnesses and the weight and value to be accorded to their testimony. According to the evidence of Nossit, he was fully empowered to employ the physician as he did, to administer not only temporary relief, but for the subsequent treatment, and the jury so found the fact to be.
Theodore Anderson, the injured employee, testified on the part of plaintiff, and it appears that defendant’s counsel during cross-examination drew from this witness that Mr. Sehmalz had offered him $5.00 by way of a compromise of his claim against the company because of the personal injury received, and said, too, that he would pay the doctors $100-for their services. The witness said the offer was made in connection with an offer to compromise his claim against the company for damages. Defendant’s counsel then objected to it and moved that it be stricken from the record, for that it appeared to be an offer made in connection with a proposition of compromise. The court overruled the objection, and it is urged here this was error. This testimony was not incompetent, for it does not appear that any treaty of compromise was pending with respect to the claim here in suit. Nothing in the record suggests that Anderson, the injured man, represented any one of the physicians whose claims are in suit here, and it is clear he was not their agent to effect any compromise for them. It is clear, too, as before said, that there was no treaty of compromise pending concerning the subject-matter of the instant
What has been said disposes of all of the questions raised in the brief. The judgment should be affirmed. It is so ordered.
