#### Sheldon Voorhees, Plaintiff, *v.*The New York Central and Hudson River Railroad Company, Defendant.

Fourth Department,

January 6, 1909.

Contract — liability of master for medical services rendered to servant.

The fact that a railroad paid a public hospital where medical services are gratuitous one dollar a day for board and services rendered to one of its employees who had been injured and notified the superintendent that a certain physician was to he called in such cases, does not make the railroad liable for services rendered by a physician not then connected with the hospital, but who was called in by the superintendent when he was unable to procure either the services of the physician named by the railroad or the services of physicians of its staff, in the absence of any ratification by the railroad.

It is a general rule in this State that an employer is not required to provide medical attendance for his employees unless he has agreed to do so, and the exception made in other j urisdictions in cases of emergency does not obtain here.

The fact that the railroad settled with its employee for the injuries received is no admission of its liability to the physician who rendered medical services under the circumstances aforesaid.

Krtjse and Robson, JJ., dissented, with memorandum.

Motion by the plaintiff, Sheldon Voorliees, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon a nonsuit granted by the court on a trial at the Cayuga Trial Term in May, 1908.

On the 29th of June, 1905, one Eobinson, 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 *781negligence of the defendant. He needed immediate medical attention, and by the direction of one of his coemployees he was taken to the Auburn City Hospital. He lived in East Syracuse, and did not wish to be taken to the hospital, saying, “ I 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 tided 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 first. He was called by the superintendent and responded at once and found Bobinson in a precarious condition, and for twenty-four hours gave his constant attention to the patient. He continued treating him for seven weeks and until Bobinson left the hospital. The plaintiff testified the emergency service continued for at least twenty-four hours. He has commenced this action to recover the value of the services rendered for Bobinson while at the hospital. The defendant paid to the hospital its account for hoard and services furnished to Bobinson, and also settled with him. Other facts appear in the opinion.

*James W.*Hart, for the plaintiff.

*Edward Harris, Jr.,*for the defendant.

Spring, J.:

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 one dollar a day while there. There was no hospital charge for physicians or surgeons. The authorities never assumed any responsibility 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 q£ the plaintiff against the defendant rests on two *782grounds. *First.*On contract between it and the hospital. *Second.*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 employees.

*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 ivas 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 employees 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 first, 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 one dollar a day for any of its employees 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.*Hor 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 medisal attendance for Ms employee unless he has agreed so to do. *783(26 Cyc. 1049 ; 20 Am. *&*Eng. Ency. of Law [2d ed.], 52; *Davis*v. *Forbes,*171 Mass. 548; 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 employee, and it has been held that any employee 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 for medical services rendered to a third person must *rest*on an express contract, or on facts from which the intention to pay may be inferred. *(Crane*v. *Baudovine,*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, *supra.)*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 concurred, except Kruse and Eobson, JJ., who dissented in a memorandum by Kruse, J.

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 earing 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 *784Mr. Graney, or one of the crew to which he belonged, he was taken to the hospital, as was nsnal 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 one dollar 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 occasion, but was unable to find him. She was also unable to locate the regular surgeon of the hospital, and in this emergency called in the plaintiff, who attended the injured man and undoubtedly saved his life. It is for the services rendered in this emergency that the plaintiff seeks to recover.

The injured man was taken to the hospital by the authority and direction of the defendant so the jury could have found from the evidence. It was not expected that lie. was to be taken there and left to die for want of proper care and attention simply because the regular hospital surgeon was absent, and the attendance of the physician whom the defendant had designated in such cases could not be obtained. I think, under such circumstances, the superintendent of the hospital was authorized in the absence of the regular hospital surgeon to call another and, having done so, the defendant is liable for the services rendered during the emergency period. (1 Elliott Railroads [2d ed.], §§ 221a, 222, 223, and cases there cited.)

I think the plaintiff’s exceptions should be sustained and a new trial ordered.

Eobson, J., concurred.

Plaintiff’s exceptions overruled, motion for new trial denied, with costs, and judgment directed for the defendant upon the nonsuit, with costs.