Ward v. J. Samuels & Bro.

Sweetland, J. This is an action to recover compensation for professional services performed by the plaintiff, as a physician, in the treatment of John McHenry an employee of the'defendant. The case was tried before a justice of the Superior Court sitting with a jury. The jury returned a verdict in favor of the plaintiff for the full amount of his claim. The case is before us upon the defendant’s exceptions to certain *440 rulings of said justice made in the course of the trial, and to the decision of said justice denying defendant’s motion for a new trial. The defendant conducts an extensive retail department store in Providence known as the “Manufacturers Outlet Company” and employs therein a large number of salesmen and other servants. In 1910 at the time said professional services were rendered, the management of said store was in a superintendent named Steiner and an assistant- superintendent named Solomon. In case of physical injury to an employee or a customer in said store the defendant had instructed its superintendent and assistant superintendent to immediately summon and employ a physician to attend the injured person. The defendant claimed however that the authority of its superintendent and assistant superintendent in that regard was limited to the employment of a physician to render first aid, so-called, to the person injured, and that they were without authority to bind the defendant for the further medical treatment of such injured person. For more than two years before rendering the services which are the subject of this suit, the plaintiff had been summoned from time to time by said assistant superintendent, Mr. Solomon, to attend persons who were sick or injured in said store. Both Mr. Steiner and Mr. Solomon testified that they informed the plaintiff of the limitation upon their authority to bind the defendant for the services of physicians; and they further testified that at different times, and especially at the beginning of the services now in question, they warned the plaintiff that he would not be paid by the defendant for any professional treatment beyond first aid, which he might render in cases to which he was called by them. The plaintiff denied that he received such information and warning or that he knew of any limitation placed upon the authority of Mr. Steiner or Mr. Solomon to bind the defendant in said transactions. The question of the plaintiff’s knowledge as to the extent *441 of the authority of the defendant’s superintendent and assistant superintendent was therefore one for the determination of the jury. In the summer of 1910 the said John McHenry, a boy in the employ of the defendant, was severely injured while upon one of the elevators in the defendant’s store. Mr. Solomon, who was at that time acting as superintendent, in the absence of Mr. Steiner, notified the plaintiff and sent the McHenry boy to the plaintiff’s office. During the first treatment Mr. Solomon came to the plaintiff’s office and afterwards carried John McHenry to his home in an automobile. The plaintiff continued the treatment of McHenry until he was cured, making charges for said service against the defendant upon his books of account. The contention of the defendant is that there is no evidence in the case of express authority given by it to Mr. Solomon to employ the plaintiff, or any other physician, for the entire treatment of John McHenry; that properly authority cannot be implied in Mr. Solomon as assistant superintendent or as acting superintendent to engage a physician to attend an employee of the defendant injured in its service; and that there are no other circumstances in the case which warrant the finding that the defendant is liable on any claim of the plaintiff beyond the charge for the first treatment given by the plaintiff to John McHenry. At the close of the testimony the defendant moved that said justice direct a verdict for the plaintiff for twenty-five dollars only, that sum being the amount of the plaintiff’s charge for his first treatment of John McHenry; the motion was denied and the defendant excepted. After verdict the defendant moved for a new trial on the ground that said verdict was contrary to the evidence and the weight thereof, this motion was denied and the defendant excepted. We will consider these two exceptions together. The only evidence in the case as to the actual authority of Mr. Steiner and Mr. Solomon in this matter is contained in the testimony given by them. They both testify that' *442 their authority was limited to the power of hiring a physician for first aid to employees or others, sick or injured in said store. (2) As a general rule the superintendent of a mercantile corporation has not implied authority to bind said corporation to pay for the services of a physician whom such superintendent has called to attend an employee of the corporation who has been injured in the course of his employment. Spme cases have held that a superintendent or a superior servant of a railroad company, by reason of the peculiar nature of its business, has implied authority to bind said company for a physician’s first aid services, rendered to injured employees, but to no greater extent. This court however in Hall v. N. Y., N. H. & H. R. R., 27 R. I. 525, has held that, in case of the employment, by an unauthorized agent of a corporation, of a physician to attend one of the servants of said corporation, who has been injured in the course of his service, without restriction as to the extent of the medical attendance to be given by said physician, the corporation, after notice of such employment, by its conduct and by its silence, may be held to have ratified‘the acts of its agent or to be estopped from denying the agent’s authority. In that case it appeard that the plaintiff had been called to attend an injured employee of the defendant by one of its station agents who was not shown to have authority in the premises j that the plaintiff took charge of the sufferer and on the next day prepared a written report setting out the fact that he-had been called by said station agent and containing a brief statement of the injured man’s condition. This report the plaintiff sent to the principal office of the defendant by one of its foremen. In said report the plaintiff did not specifically notify the defendant that he should continue in charge of the case or that he should look to the defendant for his pay. It also appeared that on two occasions the claim agent of the defendant and its physician visited the injured man to learn his condition; that at the completion of his service *443 the plaintiff sent bills for the same to the defendant, which took no notice of them. The court said at page 530, “Whether the facts and circumstances surrounding the transaction do or do not constitute a ratification upon the part of the corporation is a question of .fact to be determined by the jury under proper instruction from the court.” The court sustained a verdict for the plaintiff for the full amount of his claim. The defendant in that case was a railroad company, but the rule therein recognized is one of general application. Also, notwithstanding the absence of actual authority in the agent and the unwillingness of the law to imply such authority from the nature of the agent’s general powers, nevertheless the corporation by its previous conduct may have so held the agent out as one having full authority to employ physicians, that it will not be permitted later to disavow the agent’s acts in that regard. It is the contention of the plaintiff that, whatever may have been the real powers of Mr. Solomon, the verdict of the jury was warranted upon the testimony as to previous transactions of a similar character between the plaintiff and the defendant, and also upon the testimony as to the defendant’s silence after it had notice that the plaintiff, in the circumstances of the case, was proceeding to perform the sérvices for the payment of which he now sues. *444 (4) *443 We are of the opinion that there was evidence before the jury which, if believed by them, supports both of these contentions of the plaintiff. There was testimony from which the jury might find that Mr. Solomon had authority to employ physicians to attend defendant’s servants injured in its store; -that for more than two years before the case of McHenry the plaintiff had attended a large number of the defendant’s servants upon the call of Mr. Solomon without knowledge on the part of the plaintiff of the limitation upon Mr. Solomon’s authority, which is now claimed; that the plaintiff had given to said injured servants the medical attention which their cases required, whether of *444 first treatment' or more; that in every case the charges for said services had been made by the plaintiff against the defendant alone, and bills for the same had been rendered to it; that the defendant through its responsible agents was aware of these facts; that in every case the plaintiff’s charges against the defendant had been paid either by the defendant itself or through its agency in such a manner as to give no notice to the plaintiff that the defendant questioned its liability to him. The defendant denies that the testimony shows the last fact in cases in which there were services rendered by the plaintiff in addition to first aid. It appears that there was a distinct corporation known as the “Outlet Mutual Benefit Association,” which had for its purpose some benefit to the employees of the defendant. Mr. Steiner, the defendant’s superintendent, was the president of this corporation. The jury were warranted in finding from the testimony that in all cases in which the plaintiff had given more than first aid attention to the injured employees, he had charged 'his entire services against the defendant and had rendered his bill for said services to the defendant and that subsequently in certain cases, if not in all but one, upon the request of the defendant’s superintendent he had made out another bill for said services against the Outlet Mutual Benefit Association, which latter bill had been paid; but that the plaintiff had rendered the services on account of the defendant, upon what he had a right to believe was the defendant’s request; that in these cases he had not waived his claim against the defendant, but had made out his bill in the form stated for the accommodation of the defendant, in furtherance of some arrangement that the defendant had with said Benefit Association, as to which the plaintiff was not interested. The finding that these circumstances did not constitute a denial of liability on the part of the defendant or a waiver of his claim on the part of the plaintiff is in some measure supported by an examination of the bills made out against said Benefit Association, which are ex- *445 Mbits in the case. These exhibits appear to be for the full services of the plaintiff in the cases therein itemized and contain charges not only for the subsequent treatment of the patients, but also for the first treatment or first aid, as to which latter service the defendant does not deny its own liability to the plaintiff and as to which latter service it is unlikely that the plaintiff would make a charge against another corporation, except upon the request and for the accommodation of the defendant. Another case is that of an employee of the defendant named Max, treated by the plaintiff upon the call of Mr. Solomon, in which case without question the defendant paid for the subsequent as well as the first treatment of the patient. The defendant seeks to minimize the effect of this circumstance by claiming that it was instructed so to do by an indemnity insurance company, and that this was within the knowledge of the plaintiff. The jury might well find from the testimony that the plamtiff had no knowledge in the Max case of any circumstances amounting to notice that the defendant questioned its liability to pay for the full service of the plaintiff. The testimony also warrants a finding of facts by the jury which would bring this case within the rule in Hall v. N. Y., N. H. & H. R. R., 27 R. I. 525. It appeared that Mr. Solomon was the agentof the defendant especially empowered to attend to employees injured in the store and to engage physicians for their treatment to a limited extent at least. In these circumstances notice to Mr. Solomon with reference to the busmess thus delegated to him, including notice regarding the conduct and the claims of physicians so employed by him must be held to constitute notice to the defendant. According to the testimony of the plamtiff and his witnesses, although the facts are denied by Mr. Solomon, Mr. Solomon knew that the plaintiff had taken the McHenry case with the expectatiou of treating the' patient as long as medical attention should be required in the case, that he was continuing such treatment, and further *446 that in the circumstances the plaintiff would probably regard the treatment as rendered on account of the defendant and to be charged to it. These facts being known by its responsible agent, having the duty to act upon them himself or to report them to the defendant, it became the legal duty of the defendant to early apprise the plaintiff of the true condition of affairs, to explain the extent of the authority of Mr. Solomon and the limit that it intended to place upon its own liability. If in these circumstances Mr. Solomon and the defendant remained silent the defendant will not be permitted now to deny its liability. Hall v. R. R. supra. From this consideration of the law and the evidence in the case we find no error in the ruling of said justice on the motion to direct a verdict or in his decision upon the motion for fnew trial. We have considered the other exceptions of the defendant taken to rulings of the justice made during the trial and find no merit in either of them. Each of said rulings permitted questions to be asked as to conversations held with the agents of the defendant as to matters with regard to which it is not questioned that said agents had a certain authority, and with regard to which the jury might find that said agents had been held out by the defendant as having full authority. All of the defendant’s exceptions are overruled and the case is remitted to the Superior Court for the entry of judgment upon the verdict.