This is an action of assumpsit brought to recover the sum of $175 for services rendered by the plaintiff, as a physician, in the treatment of one John L. McHenry, who received some personal injuries while in the employ of and upon the premises of the defendant. The jury in the Superior Court rendered a verdict for the the amount of the claim and the trial judge denied the defendant's motion for a new trial. *Page 447
McHenry, upon the happening of the accident, was taken to the office of the plaintiff by Mr. Solomon, the defendant's assistant superintendent, for the purpose of receiving surgical aid. Mr. Solomon was performing the duties of superintendent in the absence of the regular superintendent, Mr. Steiner. After being treated at the plaintiff's office the boy was further attended by the plaintiff at the former's temporary home in Warwick and later at his home in Providence and received still further treatment, from time to time, at the plaintiff's office, the whole service extending over a period of about two months.
The bill of the plaintiff for $175 includes $25, which is the amount of his charge for "first aid" services. The defendant denies its liability for anything beyond the "first aid" service, but at the same time does not contend that, if there is liability for subsequent treatment, the sum of $175 is unreasonable.
There is some conflict of testimony in regard to the instructions which the plaintiff had received in former cases from both the superintendent, Mr. Steiner, and the assistant superintendent, Mr. Solomon, and especially as to whether the plaintiff had been advised by them at some time, or from time to time, that his services for the defendant were limited to "first aid" charges. Both Mr. Steiner and Mr. Solomon testified that they had no authority from the defendant corporation to employ doctors except for such immediate and preliminary treatment as might be required and Mr. Solomon, who was more immediately connected with this particular case, testified that he informed the plaintiff that the latter's employment had reference only to "first aid" services; that all subsequent treatment must be arranged for by the parents of the boy and that he informed the latter to the same effect.
The plaintiff denies that his services were thus limited, either generally or in this particular case, and he asserts that he was authorized and directed by Mr. Solomon to render treatment to the McHenry boy without regard to *Page 448 "first aid" and that in obedience to such instruction he performed the services for which he is now seeking to recover compensation. The plaintiff introduced no evidence tending to show that the superintendent or assistant superintendent was invested with any express authority to procure anything more than "first aid" services. The plaintiff however contended that he had been connected with several cases prior to the McHenry case in which he had been paid by the defendant for subsequent treatment.
The transcript of testimony does not contain any evidence tending to establish any express authority given to Steiner or Solomon to contract or render the defendant liable for subsequent services. Both Steiner and Solomon testified, without contradiction, that they had no other or further authority than the employment of doctors for "first aid." Under these circumstances the trial justice in the Superior Court instructed the jury that Solomon was without authority to engage a doctor for more than "first aid."
The next question which naturally arises is as to the implied power of Mr. Solomon to render the defendant liable to the plaintiff for subsequent services.
The majority opinion of the court recognizes the general rule that a superintendent of a mercantile corporation has no implied authority to bind the corporation to pay for the services of a physician whom such superintendent has called to attend an employee injured in the course of his employment. I see no reason for considering the present case as an exception to the general rule. In fact the great weight of authority is to the effect that a superintendent of a manufacturing or mercantile establishment cannot bind the employer or corporation for medical services.
In the case of Atlantic Refining Co. v. Leffingwell Berry, 61 Fla. 101, the opinion of the court is well summarized in the headnote as follows: "Where a corporation operates a mining plant and does not authorize its superintendents to employ a physician at the expense of the corporation to attend an employee injured by the machinery *Page 449 of the plant, the law does not imply such authority, at least where there is testimony that such authority was not given or contemplated by those exercising the rights of the corporation. The liability of the corporation for negligence that proximately injures an employee may extend to medical services to an injured employee, but this does not create a contract liability for such services."
In the case of Harris v. Vienna Ice Cream Co., 91 N.Y. Supp. 317, the plaintiff rendered medical services to two employees of the defendant under the authority and at the request of the president and secretary of the defendant who promised the plaintiff remuneration for his services and the court granting these facts held the defendant not liable, saying: "The record is without evidence to show that the services rendered were for its benefit or in satisfaction of a claim, if any there might be, against it. `Persons dealing with the officers of a corporation, or with persons assuming to represent it, are chargeable with notice of the purpose of its creation and its powers, and with the authority, actual or apparent, of its officers or agents with whom they deal.' Wilson v. Kings County El. R.R. Co., 114 N.Y. 487, 491. The contract presently in suit may not be said to fall within the purpose of the creation of the Vienna Ice Cream Company, nor does the evidence disclose corporate benefit, or authority, actual or apparent, in its president or secretary, to obligate it in the particular instance."
In Swazey v. Union Manufacturing Co., 42 Conn. 556, it was held that the general manager of a business corporation had no implied authority to employ a physician to attend an employee injured in the discharge of his duty even though he had reason to believe that the company was guilty of negligence and in speaking of the action of the general manager in that regard the court said: "He was a servant of the defendant, appointed by its directors. The extent of his power to bind the corporation depends in part upon its by-laws, if any such there be, touching his office; in part upon the language of the vote of the directors appointing *Page 450 him, if any such appears of record; in part upon their knowledge and approval of, or the acquiescence of the corporation in, acts performed by him; and in part upon usages which may be shown to exist, controlling the matter."
In case of Cushman v. Cloverland Coal Mining Co.,170 Ind. 402, where a physician was called by the defendant's superintendent to attend an injured employee and where the superintendent immediately reported his action to the president and general manager, the latter ratified and confirmed the same, requesting the plaintiff to supply the injured employee with necessaries, the court held there was no liability on the part of the defendant, saying: "Another general rule, apparently of universal acceptance, is that officers of corporations organized for, and engaged in, commercial pursuits, without special authority, cannot, as a legal right, charge the corporation with the employment of physicians and surgeons to attend upon sick or injured employees. . . . There is no greater or different reason for holding a private mining corporation responsible for supplying medical aid for its employees than appertains to all kinds of manufacturing bodies; and we perceive no reason why corporations of either class, under ordinary circumstances, should be required to furnish their workmen with medical services any more than they should be required to furnish them with dinners."
In a similar case, Sourwine v. McRoy Clay Works, 85 N.E. 782 (Ind. App.) it was held that corporations whose business is "stationary" are not bound to furnish their employees with medical services and the general officers of such corporations cannot incur liability for such services on behalf of the corporation, and the severity of the injury to the employee, or even his death, would not affect the corporation's liability, the court stating specifically that, "Persons employed by stationary corporations, such as coal mining and clay companies, should, if they desire surgical attention, make provisions therefor in advance of accident; for they must know that accidents are liable *Page 451 to happen. If they fail to do so, and their `family, friends, and acquaintances' fail to come to their aid, charitable doctors are to be found in every community, responding to that call to which `stationary corporations' are by law deaf."
In the case of Spelman v. Gold Coin Mining Milling Co.,26 Mont. 76, employees were injured in the course of their employment and were taken to a hospital for treatment of which the plaintiff was surgeon. The day following the accident the defendant's general manager telegraphed to the plaintiff to spare no expense in giving the assistant manager the best possible nursing and attention and to provide surgical and hospital treatment for the other employees and that he would pay the expenses thereof. Later the general manager assured the plaintiff that the company would pay for all services. The bill of an eye specialist whom the plaintiff employed was paid by the check of the defendant company. The court, however, affirmed a judgment for the defendant and in the course of its opinion said: "He (general manager or other agent of a corporation) cannot, however, bind his principal by a contract to confer a gratuity or bestow a charity, however strong the promptings of humanity may be. He acts for and is virtually the company itself in those matters only which have to do with its ordinary business and are within the scope of the duties delegated to him for performance. Unless the limits of his authority are shown to have been enlarged, the duties of the general manager are confined to the transaction of the business of the corporation as distinguished from its mere ethical duties and consequent imperfect obligations, or supposed charities. The fact that a certain person is general manager of a mining company does not in and of itself imply authority in him to bind the company in matters other than those of business affairs. It may not be said, as matter of law, or declared as a fact judicially known, that general managers of mining corporations are usually clothed with such authority as that assumed by Loomis (the general manager"). *Page 452
The authorities make some distinction between cases of injury to the employees of a business or mercantile corporation and those arising from injuries to employees of railroads. The distinction arises from the different situation which the railroad employee occupies. The injury to the railroad employee is likely to, and frequently does, occur at a distance from the employee's home, where he is unknown and where he would be temporarily, at least, without means to employ medical assistance, but in those cases the implied authority only extends to "first aid" and not to subsequent treatment. Southern RailwayCo. v. Grant, 136 Ga. 303; Holmes v. McAllister, 123 Mich. 493;Terre Haute Indianapolis Railroad Co. v. McMurray, 98 Ind. 358.
The plaintiff has cited the case of Hall v. N.Y., N.H. H.R. R. Co., 27 R.I. 525, with particular reference to page 527. In that case the plaintiff, a physician, was called to attend the injured employee by a station agent and on the day following the accident prepared and forwarded to the main office of the defendant at New Haven, Connecticut, a report of the case describing the nature and extent of the injuries and that a trained nurse had been employed and was in attendance. The report clearly indicated that the services of a physician would be likely to be required for some time and that the plaintiff was giving the case his professional attention. There was some question as to whether the report of the plaintiff, which was sent by a messenger, had been received by the defendant, but the court held that the report being in the possession of the defendant at the trial it would be presumed, in the absence of any testimony to the contrary, that it had been delivered to the defendant with reasonable celerity. To this report the plaintiff received no reply from the defendant, but later the injured party was visited by the claim agent and also by the physician regularly employed by the defendant for the purpose of ascertaining if the condition of the patient was such as would permit his removal to a hospital. From *Page 453 the silence of the defendant, after being apprised of the facts regarding the accident and the condition of the injured man, and the subsequent visits of the claim agent and doctor, it would be reasonable for the plaintiff to infer that such visits came about through the report and were in response thereto. Besides, the purpose of the visits being to ascertain whether the condition of the injured man would permit his removal to a hospital would naturally indicate to the plaintiff the intent of the defendant to assume the expenses of his care and treatment.
The case presents a very different situation from that of the case at bar. In the present case the plaintiff made no report to the defendant corporation of any kind. He did not communicate with it in any way which might suggest an intention of charging the defendant for subsequent service or even that he was rendering subsequent services at all. The record fails to show any act or acts apparently authorized or directed by the corporation, like the visits of the claim agent and doctor in the Hall case, which would manifest any intention on the part of the defendant to assume the care of the person injured and the expense of his treatment.
That the plaintiff here, according to his own testimony, had no idea of looking to the defendant for compensation for subsequent services, at the time when such services were rendered, is a matter which will be discussed later.
The plaintiff claims that through the course of dealing which had obtained for a long time between himself and the defendant that he was justified in rendering the subsequent services to the McHenry boy and charging the same to the defendant. In other words, that the defendant by reason of its previous conduct in similar matters is estopped from denying its liability to compensate the plaintiff for his subsequent services to the McHenry boy.
The principles of law governing questions of this sort are laid down in 31 Cyc. 1240 et seq. and are supported by numerous authorities therein cited. These principles are *Page 454 found to be (1) that no estoppel can arise without some sufficient representation by word or conduct made with the intention that they should be acted upon, or made under circumstances which would induce a responsible and prudent man to believe that they were intended to be acted upon; (2) that where the estoppel is based upon the principal's acquiescence in or recognition of another's assumption of authority it must appear that the principal had knowledge thereof or else there can be no estoppel; (3) that in order to estop a man from denying the authority of another to act for him it is essential that his representation of authority, whether by word or conduct, should have been believed and relied upon in good faith by the person asserting the authority and also that such persons should have been misled by the representation; (4) that if the person asserting estoppel knew that no authority in fact existed or should, as a responsible, prudent man, have known that fact or been acquainted with facts suggesting an inquiry which would have led to the discovery of the want of authority on the part of the agent, no estoppel arises; and (5) that an estoppel will not serve where one relies upon the agent's alleged declaration of authority and makes no further inquiry.
In the first place the power of the agent cannot be determined by his own acts but must be determined by the acts of the principal. This proposition of law is well established by authority and is succinctly stated in the case of Bush GroceryCo. v. Conely, 61 Fla. 131, as follows: "If one holds another out to the world and accredits him as his agent he is bound by that person's acts done within the scope of the agency thus given to him. In such cases the question is, not what authority was intended to be given to the agent, but what authority was the third person dealing with him justified from the acts of the principal in believing was given to him." See, also, Wierman v. Sugar Co., 142 Mich. 422, 438; Mechanics Bank v. R. Co.,13 N.Y. 599; 1 A. E. Encyc. of Law (2d ed.) p. 990. *Page 455
The plaintiff contends that he was justified in believing that his subsequent services in the case of the McHenry boy were chargeable to the defendant through certain acts and statements of the defendant's superintendent and assistant superintendent and in believing that the defendant would pay him for such subsequent treatment. There is however no testimony that the defendant ever had knowledge, or notice of any kind, as to any prior payments, by its agents, to the plaintiff on account of subsequent services.
The plaintiff seems to rely upon the acquiescence of the defendant in the unauthorized action of its agents in paying for subsequent services rather than upon any express authority to them to do so. Such acquiescence, the plaintiff contends, is shown by the fact that the defendant had previously compensated him for subsequent services. To quote again from 31 Cyc.,supra, we find the law on this point to be that "if the claim of estoppel is based on the alleged principal's acquiescence in or recognition of another's assumption of authority, it must appear that he had knowledge thereof else no estoppel arises." See, also, Bank of Montreal v. Ingerson, 105 Ia. 349;Manning v. Leland, 153 Mass. 510.
There is no evidence of any prior payment made by the defendant or by its agents covering subsequent services, either authorized or unauthorized. To refute the plaintiff's contention that he was in any way led to believe that his services rendered to the McHenry boy, subsequent to "first aid," were to be paid by defendant, it is only necessary to examine his own testimony.
The plaintiff began to attend people injured at the defendant's place of business in 1908, and he thinks that his services were required from twelve to twenty times in that year. He continued his services during the years 1909 and 1910, although the frequency with which they were demanded during the last two years does not appear, but it is apparent that he often rendered professional services *Page 456 during that period either at the defendant's place of business or at his own office at the instance of Mr. Solomon, the assistant superintendent. Upon two occasions he had an interview with Mr. Steiner, the superintendent, but such interviews related entirely to questions arising about the plaintiff's bills for services which had been already rendered. The plaintiff testifies that during the three years mentioned it was his custom to send his bill to the defendant; that they would pay it; and that sometimes he sent them through the mail and sometimes delivered them personally, evidently intending that it should be inferred therefrom that he had sent his bills to the defendant and the defendant had paid them with full knowledge of all the facts. He testifies that in 1908 he had a talk with Mr. Steiner about the case of Theodore Max and that his second interview with Mr. Steiner was in reference to the McHenry case in 1910. There was objection on the part of Mr. Steiner to the bill in the Max case and some discussion as to the propriety of the plaintiff's charge for subsequent services and Mr. Steiner, in the presence of the plaintiff, called up the representative of an accident insurance company and some arrangement was made which resulted in the payment of the plaintiff's bill. The plaintiff says that he always charged his services to the defendant, but he admits that in some cases his bills for services were rendered to and paid by the Outlet Mutual Benefit Association, which he understood to be a separate concern; that Mr. Solomon sent people to him to be treated at the expense of that association; and that he did not know when he was rendering his services whether they were for the Outlet Mutual Benefit Association or not and he only became apprised of that fact when he submitted his bill. The plaintiff admits, on cross-examination, that three of his bills for services, one of February 1, 1910, and two of April 1, 1910, which he had in the first instance charged to the Outlet Company and were afterwards sent to the Outlet Mutual Benefit Association, were in his own handwriting; that he rendered *Page 457 his bills to Solomon, who then told him to whom they should be sent; and that he did not know until a bill was rendered for whom he had been doing work. Out of all the services rendered by the plaintiff he can recall but one instance where he can make any claim that he was recompensed for more than "first aid" services, and that was in the case of Theodore Max in which it appears that the bill was finally adjusted by the insurance company after a dispute, although he was called from a dozen to twenty times in 1908 and did all of the business of that description in the years 1908, 1909 and 1910.
There is no testimony that the defendant had any knowledge as to the settlement of the Max case, whatever the settlement may have been, but if it be assumed, though such an assumption is entirely unwarranted, that the settlement in the Max case was subsequently approved by or acquiesced in by the defendant and that the bill contained a charge for subsequent services, the approval of a single unauthorized act is not sufficient to estop the principal in a subsequent case, especially where the single act followed a dispute between the parties. Woods v.Francklyn, 19 N.Y. Supp. 377, 46 N.Y. St. 396; Temple v.Pomroy, 4 Gray, 128; Paige v. Stone, 10 Metcalf, 160;Davis v. Kneale, 97 Mich. 72; Southern R. Co. v. Grant,136 Ga. 303.
In Woods v. Francklyn, supra, the court said: "We are unable to find any sanction in principle or authority for holding that the ratification of a single act would justify an inference that any further similar act would likewise meet with recognition, or that the assumed agent is thus empowered to subject the alleged principal to liability upon subsequent unauthorized contracts."
If anything further is needed to show the utter absurdity of the plaintiff's claim that he understood that he was rendering subsequent services to the McHenry boy upon the authority of the defendant or with the defendant's acquiescence in the acts of its agents, it is to be found in his final statement that after the services were rendered to the *Page 458 McHenry boy he went to see Mr. Solomon to talk over the case and to find out to whom he should send the bill. In the face of this testimony, the claim of the plaintiff that he rendered subsequent services to the McHenry boy supposing or understanding that he was authorized to do so by the defendant and at the defendant's expense is simply preposterous.
I have not considered the exceptions of the defendant as to the admission or rejection of testimony as in my view of the case such consideration would be entirely unnecessary. I am of the opinion for the reasons given and upon the authorities cited that the defendant's exception numbered five should be sustained and that the case should be remitted to the Superior Court with direction to enter judgment for the plaintiff for $25, and that the other exceptions of the defendant should be, pro forma, overruled.
PARKHURST, J., concurs in opinion of VINCENT, J.