28 Mich. 289 (Mich. 1873), Marquette & Ontonagon Railroad Company v. Taft

Citation28 Mich. 289
Opinion JudgeGraves, J.
Party NameThe Marquette & Ontonagon Railroad Company v. Harvey S. Taft
AttorneyAshley Pond, for plaintiff in error. Wilkinson & Post, for defendant in error.
Judge PanelGraves, J. Campbell, J., concurred. Cooley, J. dissenting. Christiancy, Ch. J., concurred. Campbell, J., concurred. Cooley, J. Christiancy, Ch. J., concurred.
Case DateNovember 05, 1873
CourtSupreme Court of Michigan

Page 289

28 Mich. 289 (Mich. 1873)

The Marquette & Ontonagon Railroad Company


Harvey S. Taft

Supreme Court of Michigan

November 5, 1873

Heard April 16, 1873

Error to Houghton Circuit.

Assumpsit. Defendant brings error. Affirmed by an equally divided Court.

Judgment reversed, with costs, and a new trial ordered.

Ashley Pond, for plaintiff in error.

Wilkinson & Post, for defendant in error.

Graves, J. Campbell, J., concurred. Cooley, J. dissenting. Christiancy, Ch. J., concurred.


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Graves, J.

One Charles Otto, a laborer for plaintiff in error, was accidentally struck, while in their service, by one of their cars, and seriously injured. The yard-master of the company, Mr. Theil, who had charge of the business and men in the yard where Otto was at work at the time, caused him to be immediately removed to his boarding-house, and also procured the defendant in error, who was a surgeon, to attend him. Doctor Taft thereupon rendered services for which he charged the company two hundred and twenty dollars. Payment of the bill was refused, and he sued the company and recovered, and the case is now before us upon writ of error and bill of exceptions.

As the company insist that the evidence, all of which is embraced by the bill of exceptions, had no tendency to show a liability on their part, that question is naturally the first to be considered. Their position is that Otto was in their service, and that prima facie they were not therefore liable to him on account of the injury, and as a consequence were not bound to provide or pay for medical services which the injury necessitated; that under these circumstances, no authority can be implied, from the nature of his employment, in any agent of the company, to bind them by an agreement to pay Doctor Taft for his services, and that the only evidence of authority was of that kind.

There is evidence in the record tending to show that Their informed the doctor that he employed him on behalf of the company, that he reported the fact to the superintendent, Mr. Merritt, and that the latter gave such employment his sanction. We may, then, assume for the purpose of this question, that Theil the yard-master, and Merritt the superintendent, employed the doctor to attend Otto, and promised that the company should pay him. The question

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presented is purely one of agency, and however strong may be the force of imperfect obligation on the company, or however we may feel as to what humanity may dictate, the Court can go no further than the law goes. Unless the plaintiffs in error were in law bound by the doings of their agents Theil and Merritt, they were not liable; and unless those agents were authorized to contract for the company to pay the doctor for his services about Otto, the plaintiffs in error were not in law bound.

It was an indispensable part, therefore, of the case of defendant in error to show such authority. Was it shown? There was no evidence of Theil's authority further than this: He testified that he had charge of the yard, made up trains in the yard and had a right to employ men for all purposes they were required for in the yard and to do his part of the business, and to discharge them; that he had employed brakemen for himself and also for the road trains; that his authority consisted in employing men in his department.

Now, the affairs of a railroad corporation must necessarily be carried on through agents and servants of various grades, and having powers classified and regulated in a manner to correspond with the nature and arrangement of duties. And in the absence of evidence of either express delegation or of usage, the authority of the particular agent must be inferred from facts connected with the business and position.

There is certainly nothing in the evidence respecting the business required of Theil, or in his position in the company's service, which suggests his possession of authority to bind by contracts for professional services. He was a mere yard-master, charged with local and very circumscribed duties, and those duties do not appear to have had any connection with the employment of professional assistance for the company.

In respect to Mr. Merritt who in the record is called superintendent, the case is somewhat different. It is, of

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course, correct to say that the office of superintendent may be made to embrace an authority to employ and pay surgeons in such a case as this. And I think it is not too much to add that it was the duty of the company to keep lodged where it could be seasonably exerted a discretionary power for meeting such emergencies, and that in the interests of humanity it ought to be used cheerfully and liberally.

But the question here is not upon the duty of the company to confer this discretionary power upon some one, but it is whether, upon the facts before the court, there was ground for finding that Mr. Merritt was the possessor of that power. Now, upon that subject there was absolutely no fact to go upon, except that as a servant of the company his title was that of superintendent. There was no evidence of express delegation, or of usage in this company, or of circumstances tending to show either the nature of scope of his powers and duties. The circle of his authority was in no way or sense outlined. Everything was left to inference or implication from the solitary and nearly barren fact that he was an agent called superintendent in this particular corporation. Upon this isolated fact can we lay it down as law, that Mr. Merritt must be taken to have had not merely the ordinary powers of control and management pertaining to superintendency, but the larger and more imperial power to bind the treasury of the company to bestow what in law would have to be considered as something originally resting on imperfect obligation?

As we have nothing to indicate the nature and scope of Mr. Merritt's agency in this company, except the name it bore, we are not in a situation to make the inference, unless on appealing to general usage the name is found to denote the authority. If agencies containing the high authority claimed are ascertained to have been usually so denominated, and agencies so named are found to have usually embraced it, it may be admissible to consider the name as some evidence of the power. If, however, on the

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contrary, the particular agencies covering such high authority have sometimes been so denominated and sometimes not, if agencies having this particular name have sometimes included this power and sometimes not, if there has been no uniform rule in that regard, it appears to me we should not be at...

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