CHAMPLIN
J.
The
plaintiff is a corporation existing under the laws of
Michigan. Dr. Henry F. Lyster is a physician and surgeon
residing at Detroit, and is president of the faculty of the
Michigan College of Medicine. What his authority is, if any
he has, to make contracts binding on plaintiff does not
appear from the record before us. The defendant is
superintendent of the Detroit division of the Lake Shore &
Michigan Southern Railway Company. On the evening of November
10, 1882, a person not a passenger or employe of the Lake
Shore & Michigan Southern Railway Company, was run over by an
engine in the company's yard, by which his limb was
crushed below the knee, and a messenger was sent (by whom is
not disclosed) to Dr.
Lyster
to procure his assistance. The doctor had had some experience
with the railroad company before, and there had been some
dispute about bills which had been presented by the doctor
for similar services; but such matter had been personal with
the doctor and not with plaintiff. It appeared that this was
the first instance where Dr. Lyster had taken a person
injured on this company's road to the hospital connected
with the Michigan College of Medicine. When the messenger
called upon Dr. Lyster to render assistance to the injured
person, he called up the defendant by telephone, and we quote from the testimony of the doctor as to what
occurred:
"I
called up Mr. Charlesworth. I knew he was the
superintendent, and asked him if he wanted me to go down
and attend this man who had been run over. He had not heard
of the accident before. It was the first time he had heard
of the accident. It was late in the evening. It was a
winter evening, and the telephone was the most ready method
to reach him, and I told him that there had been a man
there from the road who had come up for me. An employe said
there was a man run over by one of their engines and
severely injured. I wanted to know if I should go down and
take care of him and attend him. He said, 'Yes.' I
said, 'Shall I take him to a hospital,' and he
said, 'Yes.' There was some other conversation. I
don't remember the details of it exactly; something
about the nature of the accident, who the person was, or
something. I didn't know anything about it
particularly. Nobody did at that time. And under that
authority I went down and telephoned for the ambulance to
the hospital of the Michigan College of Medicine. It was
the only ready method of conveyance that could be obtained,
and the ambulance reported there. I dressed this man and
took him to the hospital in the ambulance, and I was
obliged to make an amputation that night. Question. When
you called the superintendent, Mr. Charlesworth, up by
telephone, what did you say to him--what was the substance
of the conversation? Answer. I have given you the substance
pretty much. Q. Was anything said about pay? A. I don't
think there was anything said about pay. I do not think
there was anything said to Mr. Charlesworth about not
having received pay for my services rendered formerly at
the time when I called him up on the telephone. I don't
remember anything now that I said, anything about those
previous matters, alluding to them; I do not remember. I
have given the conversation as I recollect it, as far as
the main points of it, that I had in my mind, which related
to getting authority to take him to the hospital. The
details I don't remember further. There was
something,--as it was the first intimation Mr. Charlesworth
had of the injury,--something was said about that, but the
details of the conversation I don't recollect beyond
that. I think Mr. Charlesworth said something about it
would not do to let the man suffer, or something of that
kind. I took him to the hospital that night,
and he stayed there until the twenty-ninth of December,
from the tenth of November, 1882,--about seven weeks. I
performed a surgical operation. He had been run over below
the knee. The leg had been all destroyed by the wheels of
the engine,--all crushed,--an injury that had severed his
leg, and I amputated the leg at the knee joint that night.
He was furnished during that time at the hospital with
medicines, and nursing, and board, and all the necessary
care was furnished by the hospital,--nursing, medicines,
rations, fuel, lights, bedding, and everything that is
required under those circumstances. He was discharged from
the hospital as soon as he could be with safety,--as soon
as he was well. He got well very quickly. He was kept there
a very short time for cases of that sort. He was not kept
there only about half as long as cases of that kind are
kept in the hospital,--case of an injury and operation. The
charge was five dollars a week. It was less than a
reasonable charge. It was made at a lower rate because it
was a railroad company, and a good deal of business comes
from the railroad companies, so that we make a lower rate.
The college presented
the bill to the railroad company, and they declined to
pay,--the company to whom it was referred. Their attorney
declined to pay it. The bill was sent to the superintendent
by the hospital."
The
witness identified a letter written by the superintendent as
follows:
"DETROIT,
December 22, 1882.
"Dr.
Henry F. Lyster, City--DEAR SIR: In relation to the bill
you presented for attendance to D. O'Brien, would say
there seems to be some mistake in the matter. You called me
up on telephone and asked me about it. I said you had
better go and look after him, as it would not do to let him
suffer. This I done as an act of humanity, but it seems to
me it is presuming a great deal to think that this covers
his whole time of disability. It was the fartherest thing
from my mind. I only wished you to take care of him for the
time,--to perhaps save his life. One of the officers of the
college came down with a bill for board, yesterday, and
left word with my clerk that others would follow. It looks
as if this was imposing on good nature. I have referred
everything to Ashley Pond, our general attorney, who you
can consult on the subject.
"Very respectfully, T.J. CHARLESWORTH,
Superintendent."
-- Which was read in evidence, as was also the
following letter:
"THE
LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
"CLEVELAND,
O., February 9, 1883.
"MY
DEAR SIR: I have received your letter of the first inst.,
respecting the bills of Dr. Lyster. Herewith inclosed I
send you copy of circular notice issued by the company in
1878. When this circular was issued it was generally
distributed along the line, and we presume all parties
interested saw the notice and understood the policy of the
company. Under this policy we must decline to pay the bill
to Dr. Lyster.
"Very truly yours, JOHN NEWELL, Gen'l Manager.
"L.S.
Trowbridge, Esq., Detroit, Mich."
The
circular referred to was introduced in evidence as follows:
"THE
LAKE SHORE & MICHIGAN SOUTHERN RY. CO.
"CLEVELAND,
December 12, 1878.
"To
all Officers and Employes: Notice is hereby given of a change
in the policy of this company towards employes who may be
injured in the service. Hereafter, the provision of surgical
aid, nursing, hospital assistance, or other needs for injured
men, must be made by the employes themselves; and this
company will not assume any responsibility of any kind in
respect of the expenses which may accrue from any accidents
which may happen. No allowance for lost time on account of
injuries will be made except in special instances, after
approval from the general office. Every employe now in, or
who may hereafter be employed in the services of the company,
can only continue in or enter into the service of the company
with the understanding that he assents to and will adhere to
this rule.
"CHARLES
PAINE, General Superintendent.
"L.H.
CLARKE, Chief Engineer."
It was
admitted that this circular was sent to defendant, as well as
the rest of the employes of the road. Upon cross-examination
Dr. Lyster testified as follows: "When I
first saw this man I found him on the floor in one of the
rooms down in the yard, very seriously hurt. I understand now
that he was not an employe. I took him up to the college, and
kept him there until the twenty-ninth of December from that
night. After I took him to the college I don't think I
had a conversation with Mr. Charlesworth with reference to
paying his board bill. I don't remember any. I do not
think I had any correspondence with...
