109 Mich. 547 | Mich. | 1896
This cause was commenced in justice’s 'court, and appealed to the circuit, where, on a trial before •a jury, verdict and judgment were rendered in favor of the plaintiff for $100. The action was brought for services rendered by the plaintiff as nurse to one Harden-burg, who, while in the employ of the defendant, was severely burned on his face and neck, causing injuries requiring medical attendance and the attention of a nurse. The injury was caused by the explosion of a steam valve, and, after the injury, Hardenburg was at once removed to Emergency Hospital, where his injuries were dressed. It appears that the defendant, at the time of the accident to Hardenburg, held a policy, made by the Standard Life & Accident Insurance Company to the defendant, wherein the insurance company agreed to pay to the defendant all sums it (the defendant) might become liable for on account of bodily injuries sustained by its employés on or about its premises, which policy contained the following stipulation:
“It is hereby agreed, in the event of injury of any employe of the assured, resulting from accident occurring during the hours of labor, and while actively employed in the service of the assured, that the company’s surgeon shall attend such employe until he shall have fully recovered from the effects thereof; that said employe can be sent to any public hospital in the city, and the charges for services rendered injured employes shall be paid by said company.”
Dr. Hitchcock, the regular physician of the insurance -company, being advised of the accident, made inquiry at
“What did he say about paying for it?
“A. He said that my bill and the nurse’s bill they would see to. He would see to that.”
This conversation took place, as claimed by Dr. Judson, at the office of the company, and following said instructions he told the plaintiff what Fitzgerald said. This conversation is denied by Mr. Fitzgerald. The court submitted the question of authority of Mr. Fitzgerald to make this contract for and in behalf of the company to the jury, saying:
“So far as the question of authority is concerned, I cannot say to you, that there is no evidence in this case from which you may infer that the superintendent or manager of the institution, as Mr. Fitzgerald testified he was, was authorized to make a contract. I think, from the evidence of what he did, and the evidence that he was the manager, you may draw the inference that he*550 was authorized to make such a contract as the plaintiff contends in xhis case was made. I do not say it is a necessary inference, but from the testimony in this case it is for you to say whether Mr. Fitzgerald did or did not have power to make a contract for the nursing of 'the injured man, as is claimed by the plaintiff in this case.”
. Further on in the charge the court said, upon the same question:
‘ ‘ To restate, perhaps, what I said at first, the plaintiff is not entitled to a verdict unless you find—First, that the manager, Mr. Fitzgerald, was authorized to employ him; second, that he did employ him.”
Certain requests were presented by counsel for defendant which the court refused to give to the jury, and certain assignments of error refer to such refusal. These requests, taken together, substantially are: That there was no evidence in the case that Mr. Fitzgerald ever authorized the employment of the plaintiff for or on behalf of the defendant; that there was no evidence that Mr. Fitzgerald had power and authority to employ the plaintiff for and on behalf of the defendant; that the evidence showed that the defendant had made provision for the medical attendance and care of its employés injured by accident; that, under such circumstances, the burden of proof rests upon the plaintiff to show that Mr. Fitzgerald had authority from the company to make the contract claimed by the plaintiff; and that, under the pleadings and proof, the plaintiff was not entitled to recover. The evidence showed that Mr. Fitzgerald was the superintendent of the company, its manager, a stockholder, and one of the board of directors. The company is a domestic corporation, organized under an act to authorize the formation of electric light companies within this State.
We think the court was not in error in refusing these requests to charge, and that the charge as given substantially sets out the law in reference to the power of Mr. Fitzgerald. Under the testimony, it was a question of
“We think it is within the general scope of the employment of a railway superintendent to make such a contract as the jury have found was made in this case, and that no evidence to prove a special authorization is requisite.”
In the present case, the management of the affairs of the corporation had, for upwards of five years, been left in the hands of Mr. Fitzgerald. An effort had been made,
Error is also assigned upon the ruling of the court in permitting Hr. Judson to testify that he charged upon his own books of account for his services rendered to the company. The question arose as follows: He was being examined by counsel for the plaintiff, and was asked:
‘ ‘ Did you ever make any demand upon, Mr. Hardenburg for your pay ?
“A. I had some conversation with him about it, and I did not make any demand on him. I charged my bill up, and it is on my books, to the Detroit Electric Light & Power Company; and it is on my books.”
Counsel for defendant asked the court to strike out the testimony as to the account being charged to the company. This was refused. It is apparent that this was not responsive to the question, and could but have been prejudicial to the defendant. The whole case hinged upon whether the jury took Dr. Judson’s statement, or that of Mr. Fitzgerald, as true; and the fact that Dr. Judson charged his services to the defendant might have been regarded by the jury as evidence that the contract was made as claimed by the plaintiff. The testimony was incompetent for any such purpose, and we think the court should have stricken it out when the request was made.
For this reason the judgment must be reversed, and a new trial ordered.