[114 N.Y.S. 243] On the 29th of June, 1905, one Robinson, a freight brakeman in the employ of the defendant, was very seriously injured in the course of his service, and the injuries may be attributed to the negligence of the defendant. He needed immediate medical attention, and by the direction of one of his co-employés he was taken to the Auburn City Hospital. He lived in East Syracuse and did not wish to be taken to the hospital, saying: " He wouldn't live anyway." One Marks, a claim agent of the defendant, had previously told the superintendent of the hospital: " That Dr. Conway had been appointed New York Central physician for Auburn, and the company would like to have Dr. Conway notified when a case was admitted. That was the sum and substance of what he said." The superintendent at once endeavored to find Dr. Conway over the telephone. She was unable to do so, and then tried to get the hospital surgeon on duty, and failed in this. The plaintiff was a surgeon in Auburn whose service at the hospital was to commence on July 1st. He was called by the superintendent, and responded at once, and found Robinson in a precarious condition, and for 24 hours gave his constant attention to the patient. He continued treating him for 7 weeks, and until Robinson left the hospital. The plaintiff testified the emergency service continued for at least 24 hours. He has commenced this action to recover the value of the services rendered for Robinson while at the hospital. The defendant paid to the hospital its account for board and services furnished to Robinson, and also settled with him. Other facts appear in the opinion.
The fact that an employer admits his liability for injuries to an employé by settling with him therefor does not inure to the benefit of the physician treating the employé for such injuries.
James W. Hart, for the motion.
Edward Harris, Jr., opposed.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.
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 $1 a day while there. There was no hospital charge for physicians or surgeons. The authorities never assumed any responsibility [114 N.Y.S. 244] 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: (1) On contract between it and the hospital; (2) 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 employés.
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 employés 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 1st, 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 $1 a day for any of its employés 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 employé, unless he has agreed so to do. Encyc. of Law & Pro. vol. 26, p. 1049; Am. & Eng. Cyc. of Law, vol. 20, p. 52; Davis v. Forbes, 171 Mass. 548, 51 N.E. 20,47 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 employé, and it has been held that an employé 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 medical [114 N.Y.S. 245] services 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, 51 N.E. 20,47 L.R.A. 170, 174.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 concur, except KRUSE, J., who dissents in a memorandum, in which ROBSON, J., concurs.
KRUSE, J. (dissenting).
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 $1 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 ...