Burke v. Chicago & W.M.R. Co.

• Decision Date: 17 November 1897
• Citation: 72 N.W. 997,114 Mich. 685
• Parties: BURKE v. CHICAGO & W. M. RY. CO.
• Court: Michigan Supreme Court

72 N.W. 997

114 Mich. 685

BURKE v. CHICAGO & W. M. RY. CO.

Supreme Court of Michigan

November 17, 1897

Error to circuit court, Berrien county; Orville W. Coolidge, Judge.

Action by Charles H. Burke against the Chicago & West Michigan Railway Company. There was judgment for plaintiff, and defendant brings error. Reversed.

F. H Nims and Wm. Alden Smith (F. W. Stevens, of counsel), for appellant.

James O'Hara, for appellee.

MONTGOMERY J.

This action was brought to recover for medical attendance upon one Herman Radke, a former employ� of defendant company, who had received injuries while working on a train of defendant. The plaintiff recovered a verdict of $21.22, and defendant brings error. After Radke received his injuries, he was first treated by Dr. Scott, a local assistant surgeon of the railroad company; but on a certain occasion he was taken worse, sent for Dr. Scott, who could not be found, and plaintiff was summoned, and continued to treat the patient for some weeks, commencing March 4, 1895, and continuing until June 26th of the same year. Dr. G. K Johnson, of Grand Rapids, was at the time chief surgeon of the defendant railroad. On the 3d of April he wrote plaintiff as follows: "I am informed that you are now attending Herman Radke, an employ� of the C. & W. M. R. R. Co., who was injured a few weeks ago. Will you be kind enough to inform me as to his present condition? Has he completely recovered? I would like a history of the case since you took charge of it. Please send your bill for services, itemized, to me, if you are through with the case." It is not claimed that in the first instance plaintiff was employed by any one assuming to act for the railroad company, and the circuit judge so charged the jury; but he left the jury to determine whether Dr. Johnson had authority to employ plaintiff to render the services in question after April 3, 1895, and whether Dr Johnson did employ the plaintiff to render such services instructing the jury that, in determining the question, the letter of April 3d, above quoted, should be considered. The only evidence tending to show employment is contained in this letter. It certainly contains no express authority for plaintiff to attend Radke at the expense of defendant. But further than this, the undisputed testimony shows that Dr. Johnson was given no express authority to employ the plaintiff. It appears that his authority was limited, in...