Union Pac. Ry. Co. v. Beatty

• Decision Date: 07 May 1886
• Citation: 10 P. 845,35 Kan. 265
• Parties: THE UNION PACIFIC RAILWAY COMPANY v. G. F. BEATTY
• Court: Kansas Supreme Court

10 P. 845

35 Kan. 265

THE UNION PACIFIC RAILWAY COMPANY v. G. F. BEATTY

Supreme Court of Kansas

May 7, 1886

Error from Clay District Court.

ACTION by Beatty against The Railway Company, to recover for services as a physician and surgeon and for medicines alleged to have been rendered and furnished upon the employment of the defendant company. Trial at the May Term, 1884, and judgment for plaintiff for $ 250 and costs. The Company brings the case here. The material facts are stated in the opinion.

Judgment reversed and remanded.

J. P Usher, for plaintiff in error.

J. S Walker, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This proceeding is brought to reverse a judgment obtained against the Union Pacific Railway Company by Dr. G. F. Beatty for his services as a physician and surgeon, and for medicines alleged to have been rendered and furnished upon the employment of the railway company. It appears that on June 11, 1883, a passenger train of the railway company was derailed at a point on the Kansas Central division of the road, between Miltonvale and Clay Center, and that a number of the employes and passengers on the train were injured. At the instance of the station agent and also of the locomotive engineer of the wrecked train, the plaintiff went to the point where the accident occurred, and there found eight persons suffering from injuries received in consequence of the accident, two of whom were the employes of the company. He states that six of the cases proved to be of but minor importance, while the injuries received by three of the passengers were of a more serious nature. The three last named were taken to Miltonvale, where the doctor continued to give them medical and surgical care and attention for ten days thereafter. It further appears that while the plaintiff and the station agent were on their way to the scene of the accident, the station agent was injured by the bursting of a torpedo which had been placed on the track, and the treatment of this injury was also included by the plaintiff in his charge against the company. The plaintiff offered proof tending to show that the division superintendent of the railway company was notified of the accident and of the fact that the doctor was in attendance upon the persons who had been injured, and that he directed the station agent to take the injured persons to Miltonvale, and to continue the plaintiff as physician and surgeon in charge of them. He also attempted to prove that his employment by the station agent and engineer was subsequently ratified by the division superintendent. That the plaintiff was requested by the station agent and engineer to attend and take charge of the injured persons seems not to be questioned, but the division superintendent denied that he ever authorized them to employ the plaintiff, or in any way ratified his employment. The plaintiff presented a bill for his services for $ 250, which was referred to the general superintendent of the company, who rejected the claim, and in a letter to the plaintiff gave his reasons as follows:

"Referring to your claim of $ 250 for services to passengers injured by train blowing off track on Kansas Central division on night of June 11, we do not consider that the company was responsible or in any fault for the accident, and as you were not employed by the railway company to attend the injured passengers, your claim is respectfully declined."

The plaintiff recovered for his services to the passengers and employes the full amount of his claim.

At the trial in the district court, as well as here, the plaintiff below relied upon an employment by the division superintendent, and contended that that officer had authority by virtue of his office to bind the company for the medical and surgical service which he had rendered. The principal question in the case is in regard to the authority of the division superintendent in this respect. The court below, in the trial of the cause, proceeded upon the theory that it was within the general scope of the employment of the division superintendent to contract in behalf of the company for such services as were rendered by the plaintiff.

Accordingly the jury were instructed that the division superintendent would be presumed to have authority to employ the doctor and to bind the company for the medical care and protection which he gave to the injured passengers and employes, until the contrary was made to appear. This was error. To support this position, the case of Pacific Rld. Co. v. Thomas, 19 Kan. 256, is relied on. The position would be correct, and the authority applicable, if the...