Cranford v. Maryland Casualty Co.

• Decision Date: 20 February 1928
• Docket Number: 26730
• Citation: 115 So. 586,149 Miss. 345
• Court: Mississippi Supreme Court
• Parties: CRANFORD v. MARYLAND CASUALTY CO. [*]

115 So. 586

149 Miss. 345

CRANFORD v. MARYLAND CASUALTY CO. ^[*]

No. 26730

Supreme Court of Mississippi

February 20, 1928

Division B

TRIAL. All instructions given must be read together, and if, when so read, they embody applicable principles of law, neither party can complain.

All instructions given in a case must be read together as one instruction, and, when that is done, if they are found to embody applicable prineiples of law and are complete, neither party has ground of complaint, even though, taken separately instructions may be incomplete.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, Second district. HON. R S. HALL, Judge.

Action between R. H. Cranford and the Maryland Casualty Company. From the judgment, the former appeals. Affirmed.

Statement of facts by reporter.

Dr Cranford sued appellee for medical and hospital bills incurred by the Livingston family who were injured by a collision with an automobile of one Charley Miller who was insured by appellee. The case was one of fact for the jury, the real controversy arising over the alleged agreement of the appellee to pay the bill.

Affirmed.

Welch & Cooper, for appellant.

Appellee endeavored to drive a nail on which to hang the contract in question and have it declared void as violative of the Statute of Frauds in that appellee would be standing for the debt of another, the contract resting entirely in parol. Appellee received the following instruction: "The court instructs the jury for the defendant that if you believe from the testimony when Tom Livingston and family were carried to Dr. Cranford's hospital, the said Livingston employed Dr. Cranford to render service and medical attention to himself and his family, then it is your duty to find for defendant." This ignores what occurred later on, or what is alleged to have occurred later on, to-wit: appellee's undertaking to pay the medical and hospital bills. The fact that Livingston and family were carried to the hospital and that no representative of appellee was there until the next day or several days thereafter in no way affects the agreement of appellee thereafter to pay for the services. This has been expressly held by this court in Biglane v. Hicks, 33 So. 413. See, also, Vicksburg Inf. v. Hines, 98 So. 530. We submit that the giving of this instruction was error.

The court gave appellee the following instruction: "The court further instructs the jury for the defendant that even if you believe from a preponderance of the testimony that Mr. Thomas made a contract with Dr. Cranford and agreed to pay him for services and medical attention rendered to Tom Livingston and family, yet you must further believe that the said Thomas had authority to bind the Maryland Casualty Company in making said contract, and unless you so believe, then it is your sworn duty to find for defendant." This instruction is objectionable, because, first, appellant did not alone rely upon the undertaking of Thomas, the claim agent. The undertaking of Schauber was also involved. Yet the instruction tells the jury to find for appellee if they find that Thomas had no authority. It disregards entirely the testimony as to Mr. Schauber. Appellant says that Schauber agreed to pay for the services. Second, the instruction places the burden on appellant to prove that Thomas had authority. The true test is not actual, but apparent authority. 21 R. C. L. 854.

The court granted appellee this instruction: "The court further instructs the jury for defendant that in order to bind defendant, the plaintiff must prove from a preponderance of the testimony that Thomas or Schauber had authority from the Maryland Casualty Company to employ Dr. Cranford to render service and medical attention to Tom Livingston and family, and unless the jury so believe they must find for defendant." This instruction is erroneous for the reason that it requires proof of actual authority and does not make apparent authority the test.

Shannon & Schauber, for appellee.

It appears that this suit is "bottomed" on the alleged agreement that Mr. A. B. Schauber, attorney, made with Dr Cranford, by which he attempted to bind appellee for the payment of surgeon and hospital fees, in a matter that had not been referred to him as an attorney. One of the clearest and most concise statements of the authority of an attorney at law to bind his client is in Stone v. Bank of Commerce, 43 L.Ed. 1031. There is no contention that suit had been brought at the time of the alleged contract. If Mr. Schauber assumed to act for the Maryland Casualty Company his actual authority must appear in the record. We call the court's...