Producers' Oil Co. v. Green, (No. 7753.)

• Court: Court of Appeals of Texas
• Writing for the Court: Graves
• Citation: 212 S.W. 68
• Parties: PRODUCERS' OIL CO. v. GREEN.
• Decision Date: 23 June 1919
• Docket Number: (No. 7753.)

Page 68

212 S.W. 68 PRODUCERS' OIL CO.
v.
GREEN. (No. 7753.) Court of Civil Appeals of Texas. Galveston. June 23, 1919.

Appeal from Harris County Court, at Law; Roy F. Campbell, Judge.

Action by Dr. C. C. Green against the Producers' Oil Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Woods, King & John, of Houston, for appellant.

Campbell, Myer, Myer & Freeman and Sewall Myer, all of Houston, for appellee.

GRAVES, J.

Dr. Green brought this suit against the Producers' Oil Company a corporation, and W. J. Sherman, an individual, to recover the reasonable value of his professional services in having performed a surgical operation upon R. R. Earp, one of the Oil Company's employés, who had been injured while in its service. He sought judgment against Sherman individually only in event the corporation was not held, thus alleging the basis of its liability:

"That on or about the 25th day of February, 1916, the said W. J. Sherman, being then and there the duly authorized agent of his codefendant, Producers' Oil Company, requested this plaintiff to perform an operation upon one R. R. Earp, an employé of Producers' Oil Company, who had been injured during his employment with said company. Acting upon this request, plaintiff did in fact perform said operation, known as sature of the patella. Said operation was performed with care and skill, and was, from both a medical and practical standpoint, successful. That before performing the operation plaintiff was assured by the defendant, acting through its authorized agent as aforesaid, that said Producers' Oil Company would pay to the plaintiff his fees for performing said operation, though no express contract as to the amount of the charge was made."

Over the protest of the Oil Company the cause was submitted on special issues to a jury, who found that W. J. Sherman, before the service was rendered, requested Dr. Green to perform the operation upon Earp under statement that the company would pay him for it, and that Sherman was authorized by the Oil Company to make such request and statement.

No issues being raised as to the rendition of the service nor as to the reasonableness of the amount claimed therefor, pursuant to this verdict the court entered judgment in Dr. Green's favor against the corporation alone for $150, permitting Sherman to go hence with his costs.

The Oil Company appeals contending through a number of assignments that it was not liable, and that its request for a peremptory instruction embodying that view of the law should have been given below.

We think the position well taken. The undisputed testimony showed that Sherman was merely a stenographer and clerk in the office of the general superintendent for the South Texas division of the business, C. P. Clayton, the latter being a general officer of the company and head of the department in which Sherman worked, the actual operation of the corporation's business being divided into departments, each having a head; that at the time Sherman made the request of and statement to Dr. Green found by the jury the Producers' Oil Company was a subscriber to the Workmen's Compensation Act (Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), and had provided for the insurance of all its employés thereunder, which facts were then communicated to Dr. Green; and that, aside from such authority as legally might and actually did come to him from his superior officer, Mr. Clayton, Sherman had none whatever to bind the company to pay for medical services rendered to Earp; indeed, Dr. Green himself excludes any other source by the specific declaration of his cause of action already quoted, and by his testimony hereinafter referred to.

Beyond the uncontroverted features stated,

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there may at first blush appear to be some haziness in the evidence as to what authority was, or more accurately speaking, perhaps, was attempted to be, conferred on Sherman by Clayton, but it is thought a careful reading of the record as a whole will dispel it.

Sherman first testified by deposition, the material portion of his evidence there given being this:

"I was in the head office. I was not one of the department heads. * * * I was connected with the general superintendent's office. I was a stenographer and clerk in the office. I handled the accident report in the claim or injury of Mr. R. R. Earp, an employé of the Producers' Oil Company. The Humble office turned that over to me. The superintendent at Humble mailed it into the office and I got it when it reached the office. Part of my duties was opening the mail and attending to matters of this kind. Nobody gave me authority to attend to matters of this kind. * * * It was part of the duties of the office. One of the duties of the desk I was on was attending to matters of this kind. That was one of the duties of the desk that I occupied on or about February 25, 1916. It was one of the duties I performed under C. P. Clayton, general superintendent, and was turned over to me by him to handle.

"I am the same W. J. Sherman who phoned to Dr. Charles C. Green about this matter. * * * Mr. Clayton told me to phone to Dr. Green about this matter. He was the head of that department at that time. I reported back to Mr. Clayton that I had phoned to Dr. Green.

"The actual running of the business of the Producers' Oil Company was divided into departments, each with a department head. Mr. Clayton was the general superintendent of this division of the Producers' Oil Company, and he occupied that position on the 25th day of February, 1916.

"I kept Mr. Clayton informed as to what was being done and the progress being made by me in the Earp...