Louisville, E. & S. L. R. Co. v. McVay

• Decision Date: 25 November 1884
• Docket Number: 11,386
• Parties: The Louisville, Evansville and St. Louis Railway Company v. McVay
• Court: Indiana Supreme Court

98 Ind. 391

The Louisville, Evansville and St. Louis Railway Company v. McVay

No. 11,386

Supreme Court of Indiana

November 25, 1884

From the Floyd Circuit Court.

Judgment is affirmed with costs.

A Dowling, for appellant.

J. V Kelso, for appellee.

OPINION

Zollars, C. J.

The only question in this case is as to the sufficiency of the evidence to sustain the finding and judgment of the court below against the appellant. The substance of the evidence is as follows: In 1882, one John Barnett was badly injured and mangled at a tunnel on the line of appellant's railway. He was removed to a hotel and appellee was employed by a Mr. Seemans, one of appellant's road-masters, to nurse and care for him. In pursuance of that employment, appellee performed the service for some eighty days. After he had been thus employed for some seventy days, he was authoritatively notified that the road-master had ordered his wages reduced to $ 1.50 per day. A few days subsequent he was notified that the road-master had ordered his discharge, and that the discharge would bring the pay for the services rendered. After he had rendered about sixty days of service under the employment, he presented his bill to Mr. Snyder, the general manager of the company, who after having asked who employed him, said that he would inquire about the matter, and see Mr. Seemans, the road-master. Subsequent to this, Mr. Seemans asked appellee to reduce his bill to $ 1.50 per day, and promised that if he did so he, Seemans, would make it all right. At about the time appellee was employed, the same road-master employed a physician, who attended the wounded man during the time appellee acted as nurse, and was paid for such attendance by appellant, the railway company. Another nurse whom the physician employed, through appellee, and whose time appellee kept and reported to the company, was paid at the general office of the company in Louisville. Appellee got medicines for the wounded man from the druggist, who was paid for the same by the company. After the services were rendered by appellee, his attorney wrote to the general manager of appellant and received the following answer:

"Louisville, Ky., Jan. 5th, 1883.

"J. V. Kelso, Esq., New Albany:

"Dear Sir: Your yesterday's favor, with enclosure, at hand. Mr. Peter McVay, I think, was employed as nurse at the rate of $ 1.25 per day, and at this rate I am willing to pay him for services actually rendered up to the time that he was relieved by our road-master; am willing to pay him no more. If Mr. McVay wishes to bring suit, I have no means of preventing him from so doing. The endorsement of C. N. Nutt, as attending surgeon, I don't think adds to the strength of the bill, as Mr. Nutt was not employed by this company.

"Yours, truly,

Wm. Snyder, General Manager."

It will be observed that there is no evidence here of any authority on the part of the road-master to make the contract for the nursing. If such authority may not be inferred from the title "road-master" there is nothing to show that he had authority to bind the corporation. In a strictly legal sense, the board of directors of a railway company are the agents and representatives of the corporation. In a practical sense, the board of directors become the corporation itself, so far at least as its relations to the public are concerned. Pierce Railroads, pp. 24 and 32, and cases cited; Ang. & A. Corp., secs. 239, 280, 299; Columbus, etc., R. W. Co. v. Arnold, 31 Ind. 174.

Whatever authority any agents, officers or employees may have they must have derived from the board of directors, or governing body, unless conferred by the charter of the corporation. Before the corporation will be bound by the contracts of such agents, officers or employees, unless authority is conferred by the charter, it must be shown that authority to so contract has been given by the board of directors or governing body, either expressly, impliedly or by ratification. Section 3897, R. S. 1881; Brooklyn Gravel Road Co. v. Slaughter, 33 Ind. 185; Pierce Railroads, p. 34, and cases cited; Adriance v. Roome, 52 Barb. 399.

It is well settled that the corporation will be bound by the acts and omissions of its agents, officers and employees within the line and scope of the agency, office or employment, and that when such acts or omissions are shown to have been within the line and scope of the agency, office or employment, no further evidence of authority will be required to bind the corporation. Such authority, in such cases, will be presumed from the nature of the duties imposed upon the agent, officer or employee. But, in order that this presumption may be indulged, it must in some way be known what these duties are. Pittsburgh, etc., R. W. Co. v. Ruby, 38 Ind. 294 (10 Am. R. 111); Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261 (38 Am. R. 134); Lafayette, etc., R. R. Co. v. Ehman, 30 Ind. 83; Williams v. Cammack, 27 Miss. 209; Pierce Railroads, 277.

Whether or not the courts may, in any case, presume authority on the part of these several subordinates to bind the corporation in the manner they may have undertaken to do, or take judicial notice of the authority from the title given to the agent, officer or employee, we shall have occasion to determine hereafter.

It is very clear, upon authority and reason, that there is nothing in the ordinary meaning of the term "road-master" from which the courts may know or presume that such employee has authority to bind the company for attendance and nursing of a person injured upon the line of the railroad, whether such person, when injured, be an employee, passenger, or a person sustaining no relation to the corporation. And could the courts judicially know that the road-master is a person having charge of the repairs of the road, still they could not judicially know, or presume from this, that he has authority to bind the corporation for the nursing of persons injured upon the road, whether by trains or otherwise. City of Lafayette v. James, 92 Ind. 240 (47 Am. R. 140).

The case of Tucker v. St. Louis, etc., R. W. Co., 54 Mo. 177, was an action by a physician against the company to recover for surgical and medical treatment of a brakeman injured while on duty. He was employed by the section agent and the conductor of the train. It was held that he could not recover. After stating that there was no evidence that they had any authority to employ the physician on the corporation's account, the court said: "It is only shown that they were agents of defendant in conducting its railroad business, which of itself could certainly give them no authority to employ physicians, for the defendant, to attend to, and treat, persons accidentally injured on the road."

The case of Brown v. Missouri, etc., R. W. Co., 67 Mo. 122, was an action for drugs to a woman who had been hurt by one of the company's trains. They were furnished upon orders given by a division superintendent. The court said: "No proof was offered as to the duties of such officer, and the courts can not take judicial notice of them." For want of such proof the judgment was reversed.

In the case of Mayberry v. Chicago, etc., R. R. Co., 75 Mo. 492, it was held that the fact that a physician in the service of a railroad company is authorized to buy medicines on the credit of the company, does not imply a power to bind the company by a contract for board, lodging, attendance and nursing of a brakeman injured on one of the company's trains.

In the case of Rankin v. New England, etc., Silver Mining Co., 4 Nev. 78, it was held that "No one can be held upon a contract executed by another as agent, until it is satisfactorily shown that he possessed the authority to act for the principal in that particular character of transaction," and hence, that the full power of a foreman to employ workmen for the construction of a mill, and pay them for their services, does not include or imply the power to purchase lumber or enter into contracts respecting it.

The case of Marquette, etc., R. R. Co. v. Taft, 28 Mich. 289, was an action by a surgeon against the company for services rendered an employee who was injured while on duty. He was employed by the superintendent and the yard-master who had charge of the business and men in the yard, where the employee was engaged when injured, and who had the right to employ men for all purposes they were required for in the yard, and to discharge them. While the court divided as to the authority of the superintendent, the judges all agreed that under the evidence, the yard-master had no authority to bind the company by the employment of the surgeon. The court said: "There is certainly nothing in the evidence respecting the business required of Theil (yard-master), 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." Two of the judges held that without proof of authority on the part of the superintendent, other than that furnished by his title simply, the company was not bound by his employment of the surgeon.

The case of Cox v. Midland, etc., R. W. Co., 3 Exch. 268, cited in Wood on Master and Servant, at page 506 section 262, was an action by a physician against the company to recover for attendance upon a person injured by the company's employees. The physician was employed by a station master, who acted as the chief officer of the passenger and other departments. It was held that the company was not liable. Parke, B., delivering the opinion of the court, after giving...