135 Mo. App. 553 | Mo. Ct. App. | 1909
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 vhe part of plaintiff tended to prove
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 :
“At the request of defendant’s counsel, I make the follOAving 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 employee, Valuka, Avas injured.
“I find that the main office of the company Avas a little more than a'block away from the factory where the employee Avas 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 has been torn open, and that the bowels Avere protrqding from the abdominal cavity, and several ribs had been broken, and the heart and lungs Avere exposed.
“I find that the plaintiff, after examining the patient, inquired of the clerk- in the office Avhether they wanted the patient sent to the City Hospital or a private hospital and Avhether they, wanted him to attend the case. I find that the clerk addressed stated that
“I find that after telephoning to Mr. Crosby, the person at the phone told the plaintiff that he had gotten authority from Mr. Crosby to take the case to the hospital and treat the patient. I find that Crosby did telephone to the factory in reference .to sending the patient to a private hospital. I find that after the clerk in the office informed the plaintiff that he had authority from Mr. Crosby to take the patient to a private hospital and treat the case, the plaintiff caused the clerk to telephone for an ambulance, which came, and that the plaintiff accompanied the patient to the hospital and there performed the operation.
“The defendant had a regularly employed female physician and surgeon, but I find that she did not assist in the operation, and the testimony does not show that she was present at the operation. I find that the plaintiff employed one Amerland, a physician, to assist him in the operation, and that his 'services were necessary in the performance of the operation. I find that, on the morning after the operation was per formed, Mr. Crosby, the president of the defendant, inquired of the company’s female physician, Mrs. Bishop, about the patient and the operation, and was informed by her that Dr. Weinsberg was in charge of the case.
“I find that the defendant’s president, Mr. Crosby, had a conversation with the plaintiff the morning after the accident, in which the question of the continuation of the plaintiff’s services was discussed, and in which conversation Crosby stated that he wished the company’s physician to thereafter treat the case, and that it was not a question of expense with him but a preference of physicians. I find that when a bill for said sum against the defendant was sent to the defendant’s president, Mr. Crosby, he did not deny the company’s liability for the same, but stated in a letter to the plain
“I find that the plaintiff refused to reduce the amount of his bill, and I find that the charge of $200 made by the plaintiff for his services and those of his assistant whom he employed, is reasonable.
“From the foregoing, I find it to be a fact that Crosby, president of the defendant company, directed the plaintiff to take the patient to a private hospital ■and treat him there, intending that the defendant company should pay him for his services.
“I find that there was no express promise prior to the performance of the operation on the part of any officer or employee of the company that the company would pay the plaintiff for his services in performing said operation.
“The articles of incorporation of the defendant were not in evidence and there was no testimony as to the powers and duties .of the officers of the corporation. I further find that' the secretary of the defendant company, McEnnis, and the physician of the defendant company, Mrs. Frances Bishop, who were shown by the testimony of Crosby, the president of defendant. company, to have knowledge of important facts bearing upon the liability of the .defendant company, were not produced as witnesses by defendant, nor was their absence accounted for.
CONCLUSIONS OF LAW.
“There being no testimony as to how the accident occurred, the law presumed that Yaluka, the injured
“I hold as a matter of law that the defendant company, being a manufacturing corporation employing labor, had implied authority to employ the plaintiff as a surgeon in an emergency to treat one of its employees for injuries received in the factory of the defendant company by such employee while in the service of said company.
“I further hold as a matter of Iuav that the president of the company properly exercised such implied authority. [5 Thompson on Corp., see. 5840; Terre Haute & Ind. Railroad v. McMurray, 98 Ind. 358; Louisville, etc., Railroad v. McVay, 98 Inch 391.]
“I further hold as a matter of law that it was not necessary that the president of the defendant company should have made an express promise to the plaintiff to pay him, at the time he employed the plaintiff to render the services sued for. The law will imply a promise from the employment.
“I therefore hold that on the facts found the defendant company is liable to the plaintiff for the value of the services sued for in the sum of $200, with interest thereon from the date of the institution of the suit, and judgment will be entered accordingly for the sum of $213.50.”
The articles of incorporation of the defendant were not in evidence, and there was no testimony as to the powers and duties of the president thereof. In view of this, it is argued that the court erred in finding the defendant liable for the services rendered, for the reason, first, that it did not appear to be within the powers of the defendant corporation to employ a surgeon; and second, that it did not appear, even though it was competent for the defendant to do so, that the president was clothed with authority in that behalf. It appears to be conceded throughout the case that the de
All of the evidence in the case indicates that plaintiff intended to look to the defendant company for his compensation. In fact, such seems to be conceded by the
In view of tbe law thus stated, it is said no recovery can be allowed in this case for the reason tbe court found there was no express promise to pay. That is to say, tbe case is one in which tbe law declines to imply. a contract, and therefore an express contract must be; shown. Had the trial judge found a mere request on the part of the defendant and nothing more, the argument would have been persuasive indeed. However, we do not understand that because there was no express promise, it follows there may not be an actual contract, as distinguished from one implied by law. Although the law will not imply one if there be an actual contract, it need not be expressed. [Morrell v. Lawrence, 203 Mo. 363, 373.] It appears the court found not only that the president requested the services, but that he intended the defendant should pay therefor. It conclusively appears the plaintiff intended to charge. In these circumstances, the fact of a contract between the parties is established by the testimony. An agreement between two competent parties, upon a sufficient consideration to do or not to do a particular thing, constitutes a contract within the meaning of the law. [2 Blackstone’s Com. 442; 7 Amer. and Eng. Ency. Law (2 Ed.), 90.] Every element of a contract between the parties appears in the present instance. Although not express in all of its details, it nevertheless constitutes a contract, There were present competent parties, the subject-matter, a sufficient consideration, and above all the aggregate mentium, for it appears that the doctor intended to charge and the defendant intended to pay. Under these circumstances, it is unnecessary to refer to the law for implication, for the contract is established as a matter of fact. The authorities above quoted and re
Now, as distinguished from such contracts implied by law, there are contracts which may be found or inferred as a matter of fact from the intention of the parties, identically as in this case. In such cases, although not expressed in terms, it is nevertheless a contract found or inferred as a fact. Although there was no express promise, as found by the court, it must be understood from its finding of fact that the doctor intended to charge and the defendant intended to pay. There was a contract between the parties appearing from the facts in proof. In such circumstances, the law does not imply a contract, for such is found to exist as a matter of fact, and upon this contract in fact, the law implies the defendant agreed to respond in a reasonable amount; that is, instead of implying the contract which exists without implication, it implies a reasonable compensation will be made as a result of the contract in fact. [See Fitzpatrick v. Dooley, 112 Mo. App. 165, 173; Hertzog v. Hertzog, 29 Pa. St. 465; People v. Spier, 77 N. Y. 114; Sceva v. True, 53 N. H. 627; 7 Am. and Eng. Ency. Law (2 Ed.), 91, 92.] Although the law might decline to imply a contract on a mere rec^uest in this case, it was certainly competent for the parties to make a contract by one requesting the
The judgment Avill be affirmed. It is so ordered.