Union P. R. Co. v. Anderson

• Decision Date: 27 April 1888
• Court: Colorado Supreme Court
• Parties: UNION PAC. R. CO. v. ANDERSON.

18 P. 24

11 Colo. 293

UNION PAC. R. CO. v. ANDERSON.

Supreme Court of Colorado

April 27, 1888

Commissioners' decision. Appeal from Jefferson county court.

This action was commenced by Joseph Anderson against the Union Pacific Railway Company to recover for services and medicines by him rendered and furnished under the following agreement:

'Memorandum of agreement made and entered into this 11th day of May 1881, by and between the Union Pacific Railroad Company party of the first part, and Joseph Anderson, M. D., party of the second part, both of Colorado, witnesseth, that in all cases of injury to employes of the said first party and others for whom the said first party is responsible, at Golden, the said party of the second part, for and in consideration of the covenants and agreements hereinafter contained, agrees to perform all necessary surgical and medical services for the treatment of said injured persons if required to do so, and to furnish the necessary medicines and surgical appliances for the same. The said first party hereby agrees to pay the said second party the sum for such treatment as is mentioned in the annexed fee-bill, less fifty per cent. on the whole sum for such services as are rendered, and the actual cost at wholesale prices, and cost of compounding medicines used, payable at the expiration of treatment and discharge of patient, and subject to the approval of the superintendent of the road and surgeon of the division. In all cases the said second party agrees to make reports to the said first party as may be requested by the said first party, and to use diligence and discretion in ascertaining and recording all facts bearing upon the cause of accidents, without extra charge. No indebtedness for the road shall be incurred without special permission before contracting.

JOSEPH ANDERSON.

'This agreement will take effect on the 11th day of May, 1881, and remain in full force and effect until the 31st day of December, 1881.

'H K. STEELE, M. D., Surgeon Union Pacific Railroad, Colo. Cent'l.

'Approved: A. A. EGBERT, Supt. Colo. Div.

'S.D. MERCER, Surgeon, etc.'

The fee-bill mentioned in the agreement was attached thereto, and for 51 items of service it specified a definite sum as a fee, and for 4 items of service it specified a minimum and maximum sum as a fee for services to be performed. It also contained the following stipulations: 'Traveling long distances, to be computed by the time consumed and services performed.' 'Any services not mentioned to be charged for upon a basis corresponding with this scale.' It appears from the evidence that the plaintiff rendered certain services to the defendant under said agreement, and for such services charged the minimum rate specified in said fee-bill, except in a few instances where the services were not provided for in the fee-bill, and for such services his charges were proportionate to the rates named in the fee-bill; that he presented his bills for such services to the superintendent or to the division surgeon; that the defendant tendered to the plaintiff the full amount of each bill so presented, or a less sum than the full amount, and, in case a less sum than the full amount of the bill presented was tendered, then a bill covering such charges was made out by the defendant for the amount so tendered, and presented to the plaintiff at the time such tender was made; and, with the exception of one bill, the plaintiff received the amount so tendered, and signed a receipt acknowledging the full payment of the bills, so presented by defendant at the time of making such tender; that the amount of the bills, so presented by the plaintiff, exceeds the amount of the bills as receipted in the sum of $105.10; that the amount of the bill for services rendered to Jones and Eagan was $29.25, for which defendant tendered to plaintiff the sum of $15, which plaintiff refused to receive. The defendant offered in evidence a letter written by the plaintiff, January 12, 1882, to the chief surgeon of the company, in reply to one received from him, in which letter he states that his resignation was based on the supposition that the company wanted its surgeon to work for a pass, and, after commenting upon the requirements of the company, and their possible effect upon his business, he says: 'In regard to extraordinary services, who is to be the judge? The surgeon in charge, and parties cognizant of the facts in the case, or the management in Omaha? Now, doctor, the fee-bill under which we have been working, with 50 per cent. off, has not, in many cases, paid me for my time and trouble and expenses, not including loss of business at home during my absence. My bills have been often cut down 25 per cent. likewise. I will ask you to make some definite proposition if you still desire my services for the company, and not have it left to the option of parties who know nothing of the amount of the services rendered. If the matter is left to the judgment of those who are unacquainted with the facts, and we may judge the future by the past, everything will be indefinite and unsatisfactory for all.' Plaintiff obtained a judgment for the sum of $105.10, and defendant appealed.

Teller & Orahood, for appellant.

Coe & Sales, for appellee.

RISING, C., ( after stating the facts as above.)

Counsel for appellant contend that, by the express terms of the agreement between appellant and appellee, the promise of the company to pay appellee for his services is limited by, and is dependent upon, the approval of the bills presented by appellee for such services by the superintendent of the road and the surgeon of the division. Counsel for appellee contend that, because of the fact that in some instances a minimum and a maximum fee was prescribed by the fee-bill for items of service to be rendered, it became necessary that some one should be selected to determine the proper medium in case the fee charged was above the minimum rate, and there was a dispute about it; and that, by reason of such necessity certain officers of the company were selected as arbiters of that matter. That portion of the agreement which...