Norton v. Rourke

Eish, C. J. (After stating the facts.) When one summons a ;physician to care for another, rendered by sudden illness unable to act for himself, and to whom he stands in no relationship which -creates an obligation to furnish necessary medical care, and no express undertaking is entered into, then, from the mere summoning -of the physician and requesting him to care for the person who is ill, the law does not presume an implied promise by the one so acting to pay for the services of the physician summoned. Meisenbach v. Southern Cooperage Co., 45 Mo. App. 232 ; Jesserich v. Walruff, 51 Mo. App. 270 ; Smith v. Watson, 14 Vt. 332 ; Starrett v. Miley, 79 Ill. App. 658. In the last case cited, a woman who was, so far as appears from the report of the facts, a stranger to Starrett, ran into his house, wounded and bleeding, and fell there unconscious. He at once called in Miley, a physician, and directed him to the injured woman and told him to care for her. Starrett also had her carried to a room in his house. No express promise was made by him to pay^ the physician for the services rendered the woman. It was held that Starrett was not liable for the physician’s services. In Boyd v. Sappington, 4 Watts (Pa.), 247, it was held that a request by a father to a physician to attend his son, then [605] of full age, .and sick at the father’s house, raised no implied promise on the part of the father to pay for the services rendered. In Crane v. Baudouine, 55 N. Y. 256, the plaintiff attended as a. physician upon the daughter of defendant, sick at the latter’s house. The daughter was of age, married and living with her husband,, but temporarily at her father’s house, to be under the care of her mother. Defendant was present at the calls, gave plaintiff a history of the ease, and received directions for her treatment. He' told others of the visits and of his opinion of the case, assented to calling a consulting physician, and had previously employed other physicians to attend his daughter. Defendant testified that he did not employ or send for plaintiff. It was held that the defendant was not liable for the plaintiff’s services. In Holmes v. McKim, 109 Iowa, 245, it was held: “One is not under any implied obligation to pay for the services of a physician called to attend a minor living with his family and supported by him, but: not otherwise related to him, though he acquiesced in the attendance and had on a former occasion paid the same doctor for attending the same minor, the physician knowing, however, the true relations of defendant and said child.” . The doctrine is well stated in 22 American & English Encyclopsedia of Law, 790. In Meisenbach v. Southern Cooperage Co., supra, Judge Seymour D. Thompson, delivering the opinion, said: “The reason and policy of this-rule are obvious. . . When a person is dangerously wounded and perhaps unable to speak for Himself, or suffering so much that-he does not know how to do it, . . any person will run to the nearest surgeon in performance of an ordinary office of humanity. If it were the law’that the person so going for the surgeon thereby undertakes to become personally responsible for the surgeon’s bill,, and especially for the surgeon’s. bill through the long subsequent course of treatment, many would hesitate to perform this office, and in the meantime the sufferer might die for want of necessary immediate attention. Nor is there a common and fair understanding that the person making the request, or ordering it to be made, in behalf of the sufferer, under the circumstances assumes responsibility for the surgeon’s bill.” The general rule is well settled that a master is not, in the absence of some stipulation, under any legal obligation to furnish medical attendance for a servant who falls sick while engaged in; [606] his duties. 26 Cyc. 1049 ; 20 Am. & Eng. Enc. L. 52 ; and see the valuable monographic note to the case of The Kenilworth, in 4 Lawyers’ Reports Annotated (N. S.), 52, wherein many cases in point are collated. In Sweetwater Manufacturing Co. v. Glover 29 Ga. 399, decided in the days of slavery, it was said: “When •one white man employs another to work for him, it is not ■an implication or incident that the employer shall pay the employee’s physician’s bills; it would require an express contract to create that obligation.” There are cases holding that there are exceptions to this general rule, but it is needless to cite them, as it is not contended that the case at bar falls within any of the exceptions. In view of the authorities noted, the evidence in the present case, •considered in its most favorable light for the plaintiff in error, did not authorize a recovery against either the defendant firm or the individual member thereof against whom the action was brought. While it would have been better practice to have directed a verdict ■at the conclusion of the evidence submitted by the parties, rather than to have granted a nonsuit as to the defendant firm, this is a matter of which plaintiff in error can not complain. As the ver•dict was demanded by the evidence, it is not necessary to pass upon •the exceptions to the charge. Judgment affirmed. All the Justices concur.