Opinion
January 6, 1909.
James W. Hart, for the plaintiff.
Edward Harris, Jr., for the defendant.
By the rules of the hospital it was open to any one suffering from personal injuries. If the patient was able to pay he was charged one dollar a day while there. There was no hospital charge for physicians or surgeons. The authorities never assumed any responsibility for the payment of their services. The staff surgeons were not employed by the hospital management. Their services were supposed to be rendered gratuitously, although there does not seem to have been any prohibition against the attending surgeon receiving pay from the inmate he treated.
The claim of the plaintiff against the defendant rests on two grounds. First. On contract between it and the hospital. Second. That the case was an extraordinary one, imperatively demanding prompt attention, and the defendant is consequently liable, as Robinson was its servant and was taken to the hospital by one of its employees.
First. The only semblance of authority in the hospital superintendent to employ a physician on behalf of the defendant is found in the testimony quoted that Marks, the claim agent of the defendant, asked that Dr. Conway, the physician of the defendant in Auburn, be "notified when a case was admitted." Whether he was to be "notified" in order to report as to the extent of the injuries, or to render medical service is unimportant, for the authority at most is limited to summoning Dr. Conway and did not include the plaintiff or any other surgeon. There was no authority given the superintendent to employ physicians to attend employees of the defendant who might be in the hospital. The plaintiff was not informed by the superintendent that he was to be compensated by the defendant for treating Robinson. The house surgeon then in service could not be obtained. Dr. Voorhees' term of service in that capacity was to commence July first, the second day after the injuries to Robinson. He was called for that reason and apparently responded, not in the expectation of any payment for his service, but because of his anticipated connection with the hospital, the rules of which he well understood.
The defendant paid one dollar a day for any of its employees while in the hospital. It did not do more than this. There was no acquiescence in any employment of the plaintiff and nothing in the way of ratification. When, months after, the claim was presented the defendant disclaimed liability for its payment.
The hospital superintendent was not engaged in employing physicians for people. That service was not within her province. She acted for the hospital authorities in summoning the physicians without assuming to act for any one else, except when she called Dr. Conway.
Second. Nor can any liability be founded on the relation of master and servant existing between the defendant and Robinson. The rule is a general one that the employer is not required to provide medical attendance for his employee unless he has agreed so to do. (26 Cyc. 1049; 20 Am. Eng. Ency. of Law [2d ed.], 52; Davis v. Forbes, 171 Mass. 548; 47 L.R.A. 170, 174.)
In a few of the States an exception to this rule has obtained in case of emergency treatment rendered by a physician to an employee, and it has been held that any employee present when the emergency arises may summon a physician on the responsibility of the employer. The exception has not prevailed in this State, so far as my research has extended, and the trend seems to be against this invasion of the general rule. ( Stephenson v. N Y H.R.R. Co., 2 Duer, 341; Cooper v. N.Y.C. H.R.R.R. Co., 6 Hun, 276.)
The right to recover for medical services rendered to a third person must rest on an express contract, or on facts from which the intention to pay may be inferred. ( Crane v. Baudouine, 55 N.Y. 256.)
There is no express agreement in this case, and the record is barren of any evidence tending to show that the plaintiff expected to charge the defendant for treating Robinson, or that it intended to be liable for such treatment. The settlement with Robinson may have been an admission of its liability for his injuries. That, however, does not inure to plaintiff's benefit. ( Davis v. Forbes, 171 Mass. 548, supra.) His right to recover must be founded on contract either express or implied and is in no way connected with its liability to Robinson.
The plaintiff's exceptions should be overruled and judgment ordered for defendant on the nonsuit, with costs of this appeal and the court below.
All concurred, except KRUSE and ROBSON, JJ., who dissented in a memorandum by KRUSE, J.
The injured person was a brakeman in the defendant's employ. That he was hurt through the negligence of the defendant is scarcely in dispute. He was so badly injured as to be incapable of caring for himself. Besides other injuries his arm and leg were crushed. The accident occurred in the defendant's yard at Auburn.
The injured person, expecting his injuries to be fatal, requested to be taken to his home, but by the direction of the yardmaster, a Mr. Graney, or one of the crew to which he belonged, he was taken to the hospital, as was usual in such cases. The matron or superintendent at the hospital testified that some one called over the phone, whose voice sounded like Mr. Graney's, that an accident case was coming. She further testified that the railroad usually had some one do that at that time so that they were prepared to admit them; that a charge of one dollar a day was made for all railroad accident cases and that the railroad company paid the hospital charges in this instance.
The defendant's claim agent had given general directions to the superintendent of the hospital and told her to notify the defendant's physician at Auburn, which she attempted to do upon this occasion, but was unable to find him. She was also unable to locate the regular surgeon of the hospital, and in this emergency called in the plaintiff, who attended the injured man and undoubtedly saved his life. It is for the services rendered in this emergency that the plaintiff seeks to recover.
The injured man was taken to the hospital by the authority and direction of the defendant so the jury could have found from the evidence. It was not expected that he was to be taken there and left to die for want of proper care and attention simply because the regular hospital surgeon was absent, and the attendance of the physician whom the defendant had designated in such cases could not be obtained. I think, under such circumstances, the superintendent of the hospital was authorized in the absence of the regular hospital surgeon to call another and, having done so, the defendant is liable for the services rendered during the emergency period. (1 Elliott Railroads [2d ed.], §§ 221a, 222, 223, and cases there cited.)
I think the plaintiff's exceptions should be sustained and a new trial ordered.
ROBSON, J., concurred.
Plaintiff's exceptions overruled, motion for new trial denied, with costs, and judgment directed for the defendant upon the nonsuit, with costs.