19 Kan. 256 | Kan. | 1877
The opinion of the court was delivered by
This was an action for services as physicians and surgeons. Daniel W. Thomas and Moses S. Thomas were the plaintiffs in the court below, and the Pacific Railroad was the defendant. • The facts of the case stated briefly are substantially as follows: In November 1869,Frank Gates was assistant master, mechanic of the western division of plaintiff-in-error’s railroad, the terminus of which was in Leavenworth. Robert Kane was section boss, and had charge of the repairs of track and road-bed, and had in his employ one John Kennedy. On November 4th, Gates and Kane, with the men under Gates’ charge, undertook to load the smoke-stack of a locomotive upon a tender at the turntable in Leavenworth, and from some defect of the appliances used the stack fell, and Kennedy was caught by it, and his leg was broken. Dr. D. W. Thomas attended Kennedy as a physician and surgeon until Kennedy recovered, which was about the last of December 1869. There was sufficient evidence for the jury to find, as we suppose they did find, that Dr. Thomas was employed by both Gates and Kane, and that Gates said that he would see that the railroad company paid for his services. Th'e plaintiffs (Drs. D. W. and M. S. Thomas, partners,) looked to the railroad company for their pay, and gave the credit to the railroad company, although upon their books they charged Kennedy for their services, and did not charge the railroad company. ' About the last of December 1869, Dr. D. W. Thomas made out a bill for his services against the railroad company, and sent this bill by mail inclosed in a letter properly addressed to H. Hale, superintendent of the western division of the defendant’s railroad, at Kansas City, Missouri. This letter
In July 1871 the plaintiffs commenced this action. Two trials were had—the first in February 1872, and the last in May 1873—at the first of which trial, as well as the last, Dr. Thomas testified concerning said letter and said bill. In March 1872 the plaintiffs gave notice to the defendant and its attorneys to produce said letter and said bill on the trial, as the plaintiffs wished to use them as evidence. The defendant however did not produce either of them; and although Dr. Thomas testified on both trials concerning their contents, yet the railroad company did not show whether they had ever been received by Mr. Hale, or not. Of course they were received. The mere putting them into the post-office, properly directed and addressed, was prima facie evidence of that fact, and there was no evidence do the contrary. The court below instructed the jury that the employment of Dr. Thomas by Gates and Kane would not alone make the railroad company responsible for Dr. Thomas’ services; and that unless such employment was afterward ratified by some agent of the company having power to ratify the same, the plaintiffs could not recover. Now the only evidence tending to show a ratification of said employment was the neglect or refusal of Hale, and of the railroad company, after receiving said letter and bill, to pay any attention to them. And upon this evidence the jury evidently found that there was a ratification; and taking this evidence, together with the circumstances of this case, we think the evidence was sufficient to sustain such finding. (Toledo Rld. Co. v. Rodriques, 47 Ill. 188; Toledo Rld. Co. v. Prince, 50 Ill. 26; Marquette Rld. Co. v. Taft, 28 Mich. 289, 294, et seq.; A. & P. Rld. Co. v. Reisner, 18 Kas. 458.) Kennedy was in the employ of the railroad company; Gates was the master-mechanic of that division; Kennedy was injured while performing services for the company, under the orders of Gates, and in the immediate presence of Gates; Gates employed Dr. Thomas, and said that he would see that the company paid him; Dr. Thomas performed the ser
But it is claimed by plaintiff in error, defendant below, that the court below erred in giving the following instruction to the jury, to-wit:
“It is claimed that Mr. Hale, the party to whom Dr. Thomas says he addressed the letter at Kansas City, was the deputy, or division superintendent of the road or company, or of that part of the road this side of Holden, Missouri. It is claimed he had such authority by virtue of his position, as empowered him originally to have employed the plaintiffs; and that if he had such power, in ease the original employment was by some servant of the company who had not authority to employ, he had the authority to ratify the unauthorized act. I say that the law would presume, in the absence of testimony to the contrary, that the general superintendent of a railroad company would have authority to employ a surgeon to attend on an employé of the company who had been injured while in the employ of the company. That would be the presumption of the law, in absence of testimony. Now the division superintendent, Hale, had, in respect to matters happening within his jurisdiction, the same authority as the general superintendent had. But I say this is the presumption of the law, when the testimony does not show what the precise nature of his authority was. If the testimony should show, as a matter of fact, that he did not have such authority, then I say to you the pláintiffs could not recover in this case; that is, if the testimony shows that Mr. Hale, as division or deputy superintendent, had not authority to have originally employed the plaintiff, then he had not the power to ratify the act of either Kane or Gates, or other subordinate servants of the company.”
We think the foregoing instruction is correct. We think that presumptively “ the general superintendent of a railroad company would have authority to employ a surgeon to at
The judgment of the court below will be affirmed.