Holmes v. McAllister

Grant, J. (after stating the facts). Had defendants’ forewoman authority to bind them by sending for plaintiff to attend the injured employé ? She had no general authority to do so. If she was clothed with any authority to do so, it must be because an emergency arose in which it was the defendants’ duty to have some one to act for them. There are authorities which hold parties liable in certain emergencies for the acts of their managers or foremen in employing physicians. These authorities, however, go no further than to hold the parties liable for the [497] immediate services made necessary by a present urgency. Authority to act is implied from the necessity of the case. Chaplin v. Freeland, 7 Ind. App. 676 (34 N. E. 1007); Terre Haute, etc., R. Co. v. McMurray, 98 Ind. 358 (49 Am. Rep. 752); St. Louis, etc., R. Co. v. Hoover, 53 Ark. 377 (13 S. W. 1092); Louisville, etc., R. Co. v. Smith, 121 Ind. 353 (22 N. E. 775, 6 L. R. A. 320); Arkansas Southern R. Co. v. Loughridge, 65 Ark. 300 (45 S. W. 907). Neither the authorities nor reason carry the rule beyond the emergency. Such employment does not make the employer liable for the services rendered by the physician to the employé after the emergency has passed. If the physician desires to hold the employer responsible for subsequent services, he must make a special contract with him. The cases above cited, and others, are those in which the employment is hazardous, exposing the employés to dangers and risks greater than those in the ordinary, pursuits of life. The ground for such liability is thus stated in Chaplin v. Freeland, supra: “Eailroad companies occupy a peculiar position with reference to such matters, exercising qu,asi public functions, clothed with extraordinary privileges, carrying their employés necessarily to places remote from their homes, subjecting them to unusual hazards and dangers. The law has, by reason of the dictates of humanity and the necessities of the occasion, imposed upon such companies the duty of providing for the immediate and absolutely essential needs of injured employés, when there is a pressing emergency calling for their immediate action. 'In such cases, even subordinate officers are sometimes, for the time being, clothed with the powers of the corporation itself for the purposes of the immediate emergency, and no longer.” There is no evidence in this case that employment in a laundry is accompanied by any such dangers. We may infer the contrary, as no accident had ever before occurred in the defendants’ business, an extensive one. An employé in a bank, store, or shop, or upon a farm, may [498] become suddenly very ill, or in some way seriously injured, so that some foreman or other employé might properly deem immediate medical attendance necessary, and, in the absence of the employer, summon a physician. Is the employer liable ? We are cited to no authority which so holds. It is doubtful whether such an employer would be liable if he himself sent for the physician to attend one of his employes. It is unnecessary upon this point to express an opinion. We do not, however, hesitate to hold that, in those avocations of life unaccompanied by dangers, an employer is not liable for the services of a physician summoned by his manager or foreman or other servant to attend an employe in a case of sudden illness or injury, whatever his moral obligation may be. If, therefore, the plaintiff had known that Miss McGrath summoned him, the defendants would not be liable. He did not know and made no inquiries as to who summoned him. He testified, “A boy from their office summoned me from the laundry.” He never informed defendants that he was treating her, or that he expected them to pay him, or presented a bill, until he had ceased, to treat her. He now seeks to bind defendants, not only for his own services, but for the services of other physicians whom he employed to assist him without their knowledge or assent. He could, in no event, recover for the services of the other physicians. Mayberry v. Railroad Co., 75 Mo. 493. We therefore hold that there was no original contract. 2. There is no evidence of ratification. The testimony of Mr. Knack and the attorney, Mr. Kissane, does not show a ratification. To Mr. Kissane defendant James denied liability, though willing to pay for the first visit at the laundry. As already shown, defendants were not originally liable. The language of Knack and Kissane imports no more than the promise to pay the debt of another, which is void under the statute of frauds. Judgment reversed, and new trial ordered. The other Justices concurred.