Smith v. Chi. & N. W. Ry. Co.
| Decision Date | 18 December 1897 |
| Parties | SMITH v. CHICAGO & N. W. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Clinton county: P. B. Wolfe, Judge.
The plaintiff is a physician residing at Clinton, Iowa. In December, 1891, one Denton Olney was a fireman in the employ of the defendant company, and was injured by his knee striking a switch target. Dr. Hobart, who was the company's district surgeon at Clinton, was called to see Olney, and treated him for a short time, when, because the family was dissatisfied, he was discharged, and one Dr. Finley was employed. The condition of the patient became serious, and a brother of his went to Chicago, and saw the chief surgeon of the company, Dr. Owens. Upon consultation, Dr. Owens telegraphed Dr. Fairchild, who was the company's district surgeon at Ames, Iowa, to go to Clinton and see the patient, Olney, which he did. After an examination of the patient, and dressing his wound, Dr. Fairchild had a consultation with the plaintiff as to the treatment to be given, and the plaintiff rendered professional services until the case was discharged; and this action is for the value of such service. The theory on which it is sought to hold the defendant liable is that Dr. Fairchild employed plaintiff, on behalf of the company, and that the service was rendered in pursuance of such employment. The defendant presented a general denial, and also, by way of estoppel, pleaded that the said Olney brought a suit against the defendant company for his damages because of such injury, which was tried in the United States circuit court, and claimed as a part of his damages the amount alleged to be due plaintiff in this suit, and recovered the same, and that plaintiff was a witness in that suit, and gave testimony showing the service rendered, and the value thereof, for the purpose and object of enabling Olney to recover therefor. The issues were tried to a jury, that returned a verdict for plaintiff, and from a judgment thereon the defendant appealed. Reversed.N. M. Hubbard, for appellant.
Hayes & Schuyler and G. B. Phelps, for appellee.
1. We first notice the question arising, and argued, presented by the denial in the answer, which is that the services were not rendered under an employment by the defendant company. The testimony as to the fact of an employment by Dr. Fairchild is in conflict, but there is a frank concession by counsel for appellant that its condition is such that this court cannot interfere with the finding, if Dr. Fairchild had authority to bind the company by his acts in that respect. It may be stated, as without dispute, that, prior to being summoned to Clinton to see Olney, Dr. Fairchild had no business connection with the defendant in what is known as the “Clinton District,” his duties for the company being confined to other territory in the state. The following is the telegram in pursuance of which he went to Clinton: A published rule of the company is that “the company will not pay for the services of any other surgeon, after the arrival of their own local surgeon, except by special arrangement in writing with the chief surgeon or general claim agent.” It does not appear that the plaintiff knew of this rule, but it is important, as showing the actual authority of local surgeons to employ others. An instruction, in effect, took from the jury any question of ratification by the company of what Dr Fairchild did, and also instructed that there was no evidence tending to show that, at the time in question, “district surgeons either had or exercised any authority in employing surgeons outside the limits of their respective districts.” With this condition of the record, the question comes to this: Had Dr. Fairchild such apparent authority as that the company is bound by his acts, assuming that he did employ Dr. Smith? The court, in express terms, told the jury that “none of the declarations or statements of Dr. Fairchild to the plaintiff or to Olney can be taken or considered by you as any evidence that he had any authority to employ the plaintiff.” It then, in the same instruction, said to the jury that such declarations and statements were only for the purpose of showing that Dr. Fairchild did or did not employ Dr. Smith, and as to such a rule there is no complaint. On the question of Dr. Fairchild's apparent authority, the court gave the following instruction: “(10) When a principal has, by his voluntary act, placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business is justified in presuming that such agent has authority to perform, on behalf of his principal, a particular act, and such act having been performed, the principal cannot deny, as against the innocent third party, the agent's authority to perform; and in this case, if you find from the evidence that Dr. Owens told Mr. Olney's br...
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