1 Kan. App. 10 | Kan. Ct. App. | 1895
This was an action brought by the plaintiff in error to recover from the defendant in error for a surgical operation performed upon, and medical services rendered to one, A. C. Staker, an employe of the Union Pacific Railway Company, who received fatal injuries at Abilene, while in the performance of his duty as a brakeman on a freight train of the defendant. The court sustained a demurrer interposed by the defendant to the plaintiff’s evidence, and gave judgment against the plaintiff for costs, and the only question necessary for our consideration is as to whether or not the court erred in sustaining the demurrer to the evidence.
The petition alleged that the plaintiff was called by the duly-authorized station agent and general agent of tlie defendant at Abilene to render medical and surgical aid to the injured employe ; that he attended to the injuries and performed a surgical operation upon the employe by direction and at the request of the defendant. It appears from the evidence that the defendant had a local physician at Abilene, who was absent at the time medical and surgical treatment was required in this case. The plaintiff testified that the station agent at Abilene, one W. N. Hendricks, asked him to go down and see what was the matter with the injured man, which he did, and informed Mr. Hendricks as to his apparent condition, and what he thought was necessary to do in the case ; that the station agent told the plaintiff to go ahead and do whatever he thought was best for Mr. Staker, and the Union Pacific Railway Company would see that he was paid for his services. It was admitted at the trial that the services were performed by the plaintiff,
As was said in Cain v. Wallace, 46 Kas. 138 : “The fact and scope of an agency may be determined not alone by what the principal may tell the agent to do, but also from what he knows, or in the exercise of ordinary care might know, as to what the agent is doing.” And in Railroad Co. v. Johns, 36 Kas. 769,
‘‘The inference to be drawn is that everything fairly within the scope of the powers exercised in the past may be done in the future until notice of revocation or disclaimer is brought home to those whose interests are concerned.”
In Railroad Co. v. Mahoney, 82 Ill. 73, the court held that —
‘ ‘ Where a surgeon has been employed by a station agent of a railway company to attend an employe injured while in the service of the company, although he may not have express authority to do so, yet slight acts of ratification by the company will authorize a jury in finding the employment was the act of the company.”
The question presented in this case is as to whether the plaintiff introduced some evidence to prove the authority of the station agent to employ the plaintiff on behalf of the railroad company to render the services that were performed. We think the fact that the agent had, several times prior to the date that Staker received the injuries mentioned, employed physicians, including the plaintiff, to treat persons receiving injuries, and that the defendant company had paid for such services without objection, 'was some evidence of the authority of the agent to bind the company in this case, and was competent evidence to go to the jury, and the court erred in sustaining the demurrer to the evidence. In support of these
The judgment of the court below is reversed, and a new trial awarded.