Dale & Banks v. Donaldson Lumber Co.

• Decision Date: 15 January 1887
• Parties: DALE & BANKS v. DONALDSON LUMBER CO. AND PUTNAM
• Court: Arkansas Supreme Court

2 S.W. 703

48 Ark. 188

DALE & BANKS v. DONALDSON LUMBER CO. AND PUTNAM

Supreme Court of Arkansas

January 15, 1887

APPEAL from Hot Spring Circuit Court, Hon. J. B. WOOD, Judge.

Judgment affirmed.

Crawford & Crawford, for appellants.

1. Corporations are bound by the acts of their agents within the apparent scope of their authority. Story Agency, sec. 127. Putnam was one of the incorporators, owner of one-third of the stock, a director, secretary and business manager of the company. Plaintiffs had no notice of any limitation upon Putnam's authority, and he will be held to have the usual scope of authority of agents of his class. See 2 L. R. Ex 228; 82 Ill. 73.

Appellees claim that Putnam had no authority to make a contract of this kind; that it was ultra vires. A plea of this nature puts the burden of proof on the company. (Morawetz Private Corps. sec. 154). And they have offered no proof. Courts do not favor this plea, especially after the contract is executed without objection, or when it would work an injustice. 98 U.S. 621; 96 ib., 267.

The doctrine of ultra vires Was intended for the protection of the state, and not for the purpose of enabling private corporations to work a fraud. 98 U.S., supra; 25 F. 812.

2. If Putnam acted outside of his authority in sending the telegram, he will be personally liable on an implied warranty to the same extent that he would, had the telegram been sent in his own name. Smith's Merc. Law, 213; Newman Pl. & Pr., 206; 14 Vt. 195; 7 Wend. 315.

Every one who assumes to act for another, as his agent, thereby impliedly warrants that he has sufficient authority to do so, and upon that warranty, a party injured may recover without regard to the agent's moral innocence. Thompson Liability of Officers, etc., secs. 9-14; 44 N.H. 196; 2 N.H. 352; 46 N.J.L. 380; 22 ib., 343; 26 N.Y. 117; 53 N.Y. 467.

3. When a physician is called in to attend a patient, it is the custom and general understanding that he is to attend the case until death or recovery, unless sooner discharged. Rogers' Law and Medical Men, p. 72; 67 Barb. (N. Y.), 578; St. & R. on Neg., sec. 441; Lawson Usage, etc., p. 278, sec. 136; 44 Md. 295; 1 Mills' Const. Rep., 150; 109 U.S. 99; 12 Ark. 645.

The doctrine that a physician should be summoned each time he is needed, is dangerous and not the true rule. Wood on Master and Servt., 340; 40 Cal. 357.

When a physician takes charge of a case and fails to give it the proper attention, he is civilly and criminally liable. 5 C. & P., 332; 3 Gr. on Ev., sec. 129; Rogers' Law and Medical Men, ch. 11; 34 Iowa 286; Wharton Neg., sec. 731; St. & R. Neg., sec. 441; 62, Me. 536; Rogers' Sup., 57, 66, 72, 74.

The retainer in this case was a continuing one, until recovery, death or discharge. 25 Ark. 170; ib., 185.

See, also, 45 How. Pr., 57; 67 Barb. 578; 62, Me. 536; 64 Me. 313.

These cases show that the contract of a physician to attend a patient, in the absence of any limitation, is an entire one--to last throughout the illness; that the law implies this in the absence of an express agreement to the contrary.

4. Putnam's tender was not good.

OPINION

SMITH, J.

The Donaldson Lumber Company was a corporation of Iowa, engaged in the manufacture of lumber in this state. Putnam was its secretary, treasurer and general business manager, besides being one of its directors and the owner of nearly one-third of its stock. One Watson, a laborer employed by the company, was dangerously wounded, not, however, in the course of his employment, but in a private brawl. Thereupon Putnam sent the following telegram:

"DONALDSON, ARK., 10-7-1883.

"To DR. DALE, Arkadelphia:

"Come here immediately by quickest means; man shot in breast. (Signed) DONALDSON LUMBER CO."

The doctor responded to this by going in person to Donaldson, and giving to the wounded man such treatment as was needed. The visit was repeated, and then, by advice of his friends and with the encouragement of Putnam, the patient was removed to Arkadelphia for better treatment. He was attended daily by the doctor and his partner in business for the space of six weeks. The bill amounted to $ 146, and it was charged to the lumber company. At the end of the year payment was demanded of Putnam, as the agent and representative of the company.

He denied all liability in the premises, but offered to pay, by way of compromise, $ 10, the price of the first visit. This proposition was declined and the physicians brought this action against the company and Putnam to recover compensation for their professional services.

The company denies that Putnam had any authority, express or implied, to bind it to pay for such services. Putnam also denied his individual liability, although he admitted he sent the message to the doctor, and that he exceeded his authority in signing the name of the corporation. His excuse for this act was, that he was personally unknown to the physician and he was afraid he would not come, if he summoned him in his own name.

A jury was waived and the trial was had before the court, which found that Putnam was acting in this matter outside of the apparent, as well as real, scope of his authority. It therefore gave judgment in favor of the lumber company. And its finding is, in that behalf, approved. But it further found that Putnam, in sending the telegram, intended to make himself liable for only one visit to Watson, and that the proof fails to establish a known and general usage and custom, that when a physician is called in he is expected to attend the patient through that particular illness. He therefore declared, as a matter of law, that Putnam was liable for one visit and no more; and gave judgment accordingly. The plaintiffs have appealed.

The facts of the case are not substantially in controversy. There is no doubt that Dr. Dale went to Donaldson and took charge of Watson's case, in reliance upon the telegram; and that he rendered the services in the expectation that the lumber company would pay for them; and that the sole reason why he so believed was the reception of the telegram.

The company, as we have seen, was not responsible; but Putnam was, upon an implied warranty of his authority. "If the agent exceed his authority, so that his principal is not bound, he will himself be liable for the damage thus occasioned to the other contracting party, although he may have been innocent of any intention to defraud." Smith's Mercantile Law, 3d Am. Ed., 213.

The only question, then is, as to the extent of Putnam's liability. He testified that he thought it was impossible for Watson to live long, and that his only motive in sending the dispatch was to gratify the wish of a dying man. He also directed Watson's friends, in case Dr. Dale could not come, to send a dispatch for a certain physician at Malvern, and he would be responsible and pay the expenses.

The plaintiffs and another practitioner of medicine who was disinterested, stated that it was understood, by the profession, when a medical man was called to the bedside of a patient, he was employed to attend him until the case terminated by death or recovery, unless the medical man was himself discharged sooner.

And the finding of the court that such was not the custom of the country was...