Trenor v. Central Pacific Railroad, 50 Cal. 222

Trenor v. Central Pacific Railroad

50 Cal. 222 | Cal. | 1875

Lead Opinion

By the Court, Rhodes, J.:

Upon the issue as to whether the defendant employed the plaintiff to render professional services as a physician and surgeon in the treatment of the persons injured by the collision, or only to take and receive such persons into the asylum, the evidence is conflicting; and the verdict, therefore, will not be disturbed on the ground of the insufficiency of the evidence to sustain the finding on that issue.

The court did not err in excluding the questions propounded to Dr. Nixon, as they did not relate to the value of services of the 'character of those charged in the complaint.

The defendant challenged Schulte for actual bias, and the challenge was disallowed, and it is now urged that the court erred in that respect. The question presented for determination by a challenge for actual bias is a question of fact, and the decision of the question, if the court comes to the wrong conclusion upon the evidence, is not an error of law, but an erroneous finding of a fact.

And we are inclined to the opinion, though we do not expressly so hold, that the decision is final, and not subject to review either on motion for a new trial or on appeal. But, however that may be, if the decision is subject to review, it is only on the ground that the evidence is insufficient to sustain it. This Court would not, except in the clearest case, interfere with the decision, for the determination of the court below is based more largely than in ordinary questions in litigation, upon the bearing, manner, appearance, etc., of the juror while giving his testimony. We see nothing in this case which requires us to disturb the decision of the court below that Schulte was a competent juror.

There was evidence in the case tending to prove that Cohen, assuming to act as the agent of the railroad company, employed the plaintiff to render his professional services in the treatment of the persons injured by the col*231lision, and that the president of the railroad company was apprised of the action of Cohen and ratified it, and continued him as such agent in that behalf, and this Court cannot say that the evidence was insufficient to justify the jury in finding a ratification by the railroad company of the contract made in its behalf by Cohen.

We see nothing in the charge of the court, or the instructions given or refused, of which the defendant can complain as productive of any injury to it.

Judgment and order affirmed.

Dissenting Opinion

Wallace, C. J., dissenting:

The action is for the recovery of compensation for services rendered by plaintiff as a physician and surgeon, about the curing and treatment of certain persons wounded in a railroad collision, and which he alleges were rendered at the request and for account of the defendant. The pleadings are not verified, and the answer of the defendant puts in issue all the allegations of the complaint. Upon the trial the plaintiff had judgment, and the defendant having been refused a new trial brings the present appeal. The contract sued upon is several; the claim is based in pleading entirely upon the alleged employment of the plaintiff, and not upon the employment of the plaintiff in conjunction with any other person. The court below accordingly instructed the jury that if the contract was made with Dr. Gibbons and the plaintiff jointly, then the plaintiff could not recover in this action, because he has “ declared on a several, and not a joint contract.” One of the grounds relied upon by the defendant for a new trial is as follows: *232“There is no evidence that the plaintiff was employed by the defendant as a physician or surgeon separately and independently from an employment of Dr. William P. Gibbons and plaintiff jointly.” The plaintiff testified upon the point as follows: “.All the wounded men were put under the general supervision of Dr. William P. Gibbons and myself. We were held responsible for the treatment of them by the other physicians and also those whom we attended. Dr. William P. Gibbons, I believe, was employed to attend to all of the patients just as I was myself, but he did not see them so frequently, because he resided out of the asylum. * * * On the day after the accident, when I met Mr. Oohen, he told me to give the wounded men every possible care and attention, both professionally and by the way of nursing—that is, furnishing them with necessaries; and he said that the railroad company put all the woundecl men under the supervision of Dr. William P. Gibbons and myself, and that they looked to us as responsible for their proper treatment, and the services which I rendered were in pursuance of this request of Cohen in behalf of the company. Dr. Gibbons also gave his attendance at the asylum, in attending and supervising the wounded.” The railroad collision occurred on the 4th of November, 1869, and it appeared, ((^cross-examination of the plaintiff, that in the latter part oftliat month the plaintiff, at an interview with the president of the railroad corporation, defendant here, presented to the president a letter prepared by the plaintiff concerning the medical attendance upon the wounded, and which letter was addressed to “Dr. W. P. Gibbons and E. Trenor ” as having been jointly employed in the business. The evidence for the plaintiff all points to the conclusion that the plaintiff was employed jointly with Dr. Gibbons; there is not the slightest conflict upon the point which I have been able to discover; the note of November 26, addressed to Stanford by the plaintiff, signed jointly by the plaintiff and W. P. Gibbons (by plaintiff), establishes clearly, that up to that time the several employment of the plaintiff had not been thought of by the latter.

*233In my judgment it is no answer in this case to say that the non-joinder of Gibbons was waived because it was not relied upon in pleading. The court below instructed the jury, without reference to the omission to plead the nonjoinder; that such non-joinder was fatal to the plaintiff’s case. It is settled here that when an instruction, even incorrect in point of law, is given by the trial court, it is the duty of the jury, in their deliberations, to observe it, and that if they disregard it there must be a new trial. (Emerson v. The County of Santa Clara, 40 Cal. 543.)

I am, therefore, of opinion that the judgment should be reversed.

Concurrence Opinion

McKinstry, J., concurring:

I concur. The non-joinder of W. P. Gibbons as a party plaintiff, was not specially pleaded by the defendant, and the non-joinder was consequently waived. (Gillem v. Ligman, 29 Cal. 637; Rutenburg v. Main, 47 Cal. 214.) There is certainly evidence tending to show that the. contract was made with the plaintiff and Gibbons; the point, therefore, that it was made with Gibbons alone is not well taken.