Stephenson v. New York & Harlem Railroad — 9 N.Y. Super. Ct. 341

Majority

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Stephenson v. New York and Harlem Railroad Company.

Headnote

An agent of a railroad company stated that the title of his office was superintendent, and that, as such, he had a general supervisory control over the whole line of the road, everything connected with the running of the road being

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under his supervision and control, and that he paid money to drivers, conductors, and other persons employed by him as superintendent, but had no direction over the treasury.

(Before Bosworth and Emmet, J.J.)

October 12;

November 19, 1853.

He Id, that it was not to be inferred from this description of his powers that he was authorized by his office to arrange and liquidate claims made against the company, for the negligence of its servants in running its trains, or, as agent, to contract with third persons to repair or remedy the consequences of such negligence.

Held, therefore, that the superintendent of the road of the defendants, in the case before the court, had no authority to bind them by the employment of a physician or surgeon to attend upon a child, which had been run over by a car, and severely injured.

There being no other proof to charge the defendants—Held, that plaintiff was rightly nonsuited.

Appeal, by plaintiff, from a judgment dismissing the complaint.

The action was brought to recover the amount of a bill, alleged to be due from the defendants to the plaintiff, for services rendered by him at their request, as a physician and surgeon.

The complaint averred, that on the 9th day of June, 1849, the said defendants, in the city of New York, by their agent, Mr. Sloat, employed the plaintiff in his professional capacity as a surgeon and physician, to attend to one Peter Peteniat, a child, who had, on the said 9th day of June, 1849, received certain severe physical wounds and injuries, in consequence of having been run over, or in some other way injured by the horses, or by a certain car belonging to said defendants, and to amputate the leg of the said child, and otherwise to heal, cure, and restore the said child; whereupon this plaintiff, on the express engagement of the said Sloat, in behalf of the said defendants, that they would pay him for the same, did, in his said capacity of surgeon and physician, on the said 9th day of June, 1849, attend to said child, and amputate Ms leg ; and did, from the said 9th day of June, 1849, to the 10th day of August, 1849, attend to said child, and endeavor to heal, cure, and restore him, and did. find, provide for, and administer to said child divers medicines, remedies, and other necessary things in the healing and curing of said child; for which

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attendance and cure of the said child, and the medicines, remedies and other necessaries so provided by this plaintiff, at the request and on the behalf of the said defendants, the said defendants are justly indebted to this plaintiff in the sum of $227.50, for which sum, with interest and costs, judgment was demanded.

The answer took issue on all the material allegations in the complaint, and denied, specially, that Sloat had any authority from the defendants to employ the plaintiff.

The action was tried before Mr. Justice Mason and a jury, on the 5th of February, 1851.

. It was proved, on the part of the plaintiff, that the child mentioned in the complaint had been run over by a railroad car belonging to the defendants, and severely injured, in the month of June, 1849, and that the plaintiff, as a physician and surgeon, had attended the child, and performed the services stated in the complaint. One of the witnesses testified that Sloat, who represented himself to be an agent of the defendants, said, that “ he wished the child tó have a first-rate physician, and would see that it should all be right.” Another, that Sloat told him (the witness) to “ have the best medical attendance for the child, and that the company would be responsible for the payment;” and that Sloat made afterwards, through an interpreter, the same statement to the father of the child. A third witness swore substantially to the same facts, and that the father had employed the plaintiff. There was no proof that Sloat had made any direct communication to the plaintiff, or that the latter had any knowledge of the assurances which Sloat had given.

Sloat was then examined as a witness, on the part of the plaintiff, and testified as follows.

“ I am one of the officers of the Harlem Railroad Company, and have been in the employ of the company as such, for nearly three years. The title of my office is superintendent. I have a general supervisory control over the whole line of the railroad, from New York to Dover Plains. The advertisements in the newspapers, with regard to the starting of the cars, their stoppage, times of arrival and departure, and general arrange

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ments, are all signed by me, ‘ M. Sloat, Superintendentthe large placards, giving these particulars, relative to the motive power, posted up in the cars, and at the station-houses along the road, are also signed in the same maimer; everything connected with the running of the road is under my supervision and control. I wish to say that I have no direction over the treasury. I go up and down on the road, between the City Hall and Dover Plains, very often, in the discharge of my duties, as superintendent, I am on the track, in the discharge of my duties, more or less every day. My office is at the corner of 4th Avenue and 27th street. I do not go up and down the track at any stated times, but as my duties call me, sometimes a greater distance, sometimes a less. I have been in the habit of going up and down as superintendent, between here and Dover Plains, during the last three years. I suppose I am pretty well known along the line, as superintendent. I pay money to drivers, conductors, and other persons employed by me, for the company, connected with my business, as superintendent.”

On being cross-examined, he said: “ I have no share in the direction of the company’s affairs.”

The counsel for the plaintiff here rested, and the counsel for the defendants moved the court for a nonsuit, upon the following grounds.

I. That there was not sufficient evidence to go to the jury, that the superintendent, Sloat, was authorized by the defendants, as their agent, to employ the plaintiff for the services performed by him.

H. That there was not sufficient evidence to go to the jury, that the plaintiff had been employed by the said Sloat.

His honor the judge, thereupon ruled in favor of the grounds taken by the counsel for said defendants, and directed a nonsuit to be entered against the said plaintiff; to which ruling and decision, the counsel for the said plaintiff then and there excepted.

W. A. Butler, for plaintiff and appellant.

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It is insisted on the part of the appellant that the court erred in taking the case from the jury.

I. The question was not whether the agent and superintendent, Sloat, was authorized by the defendants to employ the plaintiff to perform the services rendered, but whether plaintiff had a right, under all the circumstances, to infer or suppose that he possessed such authority, judging from his own acts and those of his principals. (Perkins v. Washington Ins. Co., 4 Cowen, 645, 660; Lightbody v. N. A. Ins. Co., 23 Wendell, 18; Johnson v. Jones, 4 Barbour, 369.)

II. There was sufficient evidence to warrant the jury in finding that the superintendent, Sloat, was authorized on the part of the defendants to employ the plaintiff; such employment was within the scope of the authority of Sloat, as agent and swperimtendent.

III. Even if out of the scope of his ordinary duties or .authority, the emergency of the case and the benefit resulting to the defendants from the employment, justified the act of Sloat in employing the plaintiff, and having been done in good faith, it is binding on the defendants. (Story on Agency, §141.)

IV. There was sufficient evidence to warrant the jury in finding that the plaintiff was employed by Sloat. 1. The promise to pay for medical assistance, though not made directly to plaintiff, was clearly intended for his benefit, and contemplated the performance of the service by him. 2. The promise to pay such surgeon as might perform the service, is good, and enures to the benefit of him who performs it. (Barker v. Bucklin, 2 Denio, 45 , 51, and cases there cited.) It is analogous to the offer of a reward, which has always been held to entitle the party who brings himself within the terms of the offer, to maintain an action. ( Williams v. Carwardine, 5 C. & P. 566; S. C. 4 B. & A. 621; Lancaster v. Walsh, 4 M. & W. 16; Loring v. Boston, 7 Met. 411 ; Wentworth v. Day, 3 Met. 352 ; Fallick v. Barber, 1 M. & S. 108.)

V. A new trial should be granted, costs to abide the ' event.

C. W. Sandford, for defendants.

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I. The pleadings distinctly put in issue, the authority of the superintendent, Sloat, to employ a surgeon; but no evidence was given of any such authority.

EL The evidence showed that Sloat was employed merel/y as supermtendmt of the moime power, or mmivng of the rail/road. That he had nothing to do with its finances, and no share in the direction of the company’s affairs.

III. Acts of agents beyond their powers, are not binding on a corporation or individuals. (Munn v. Commission Company, 15 Johnson, 44; Angel & Ames on Corp. 172, 3, 4; Beals v. Allen, 18 Johnson, 363; Hartford Bank v. Hart, 3 Day, 493 ; Dispatch Line v. Bellamy Manuf Co., 12 New Hampshire, 205; Ready v. Tuscaloosa, 6 Alabama, 327; Martin v. Manuf. Co., 9 New Hampshire, 51; Farmers' Bank v. McKee, 2 Barr, 318; Boom v. City of Utica, 2 Barbour S. C. R. 104; Mann v. Currie, id. 294; Johnson v. Bush, 3 Barbour’s Ch’y Reports, 207; Brown v. Appleby, 1 Sandford’s Sup. Ct. 158; Hone v. Allen, 1 id. 171, Note.)

IV. The nonsuit was properly entered.

At the conclusion of the testimony a nonsuit was moved on two grounds. The case states, the judge “ ruled in favor of the grounds taken by the counsel for said defendants, and directed a nonsuit to be entered against the plaintiff, to which ruling and decision the counsel for the plaintiff then and there excepted.”

If either ground was sufficient to justify the nonsuit, the judgment must be affirmed.

A nonsuit was moved on the ground, 1st—“ That there was not sufficient evidence to go to the jury, that the superintendent, Sloat, was authorized by the defendants, as their agent, to employ the plaintiff for the services performed by him.”

The answer denies that the defendants ever did, at any time, authorize the said Sloat to employ any person or persons, as physician, or otherwise, to render services to said Peter Peteniat, as alleged in said complaint.

The title of the office held by Sloat is “ Superintendent.” The only evidence of the nature and extent of his powers is

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such as the title of his office implies, and that furnished by his own testimony. There is no evidence, that he ever made any other contract of a like character.

He testified that everything connected “ with the running of the road” was under his supervision and control. That he had no direction over the treasury, and had no share in the direction of the company’s affairs. He pays money to drivers, conductors, and other persons employed by him for the company, connected with his business as superintendent.

The only inference deducible from his description of his powers is, that they relate solely to making provision that trains are run as prescribed by the company, that means and men are supplied for the purpose, and other things are provided, which are essential or proper to effectuate this general result. His description of his powers, or of the business which he transacts, does not justify the inference that he is authorized, by his office, to arrange and liquidate claims made against the company for the negligence of its servants in running its trains, or to contract with third persons, as its agent, to repair or remedy the consequences of such negligence.

There is nothing in the evidence to justify the application of the principle that whether authorized or not, yet the plaintiff had a right to infer and act on the inference, that judged by his own acts and those of his principal, he possessed such authority.

This case differs, in its essential facts, from that of Perkins v. Washington Ins. Co., 4 Cowen, 645. In this case, there is no evidence that the superintendent was ever authorized to employ, as agent of the company, in any event, or upon any contingency, a physician to attend upon persons injured by the running of the company’s cars, or that they ever ratified, or knew of any such contract made by him.

In Perkins v. The Washington Ins. Co., Russell, who advertised himself as the agent of the company for the city of Savannah, was authorized to agree to make insurances, to receive and remit the premiums, and if the company actually received the money, and the rates charged were such as they had prescribed, and the terms of the agreement corresponded with their regulations, they agreed to furnish a policy which should be operative from the time of the payment of the premium to

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Russell. Prior to the transaction between himself and Perkins, he had agreed to insure for a number of individuals, had received the premiums and transmitted them to the defendants, and in every instance except one, the company had issued policies bearing date at the time the receipt was given by Russell for the insurance. Perkins had paid to Russell the highest rate of insurance, had tendered the amount to the company, and there was no ground on which they could exempt themselves from giving a policy, except the arbitrary one, that they did not choose to do so.

In Lightbody v. The North American Insurance Company, 23 Wend. 18 , Wayner was expressly authorized to unsure. He was furnished with blank policies executed by the officers of the company, really to be delivered to anyone who might wish to contract, after his name, the subject insured, the extent of the risk, and the date of the transaction, had been inserted in the contract. As to all persons, ignorant that his appointment restricted him in the exercise of his agency to a specific locality, . he was a general agent, with unlimited authority. • The plaintiff had no notice that he was restricted in the exercise of his powers to a defined territory.

In the case at bar, there is no eyidence that Sloat was ever authorized to make, on any contingency, such a contract as the plaintiff alleges was made with him, or that, with the exception of this instance, he ever made such a contract, or represented himself authorized to make one of such a character.

It is urged that the emergency of the case and the benefit resulting to the defendants from the employment, justified the act of Sloan in employing the plaintiff, and that having been done in good faith it is binding on the defendants.

We cannot assent to this proposition. Ho emergency arose, which but for this employment would have interrupted or prevented the running of defendants’ cars. If the injury was not caused by the negligence of its servants, contracting to pay for expenses to which they could not be subjected by law, would be no benefit to the company. If caused by such negligence this employment would not exonerate them from any liability, which would otherwise have attached. The principle sought to be invoked has no application to the facts of this case.

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We are of the opinion, that the nonsuit was properly granted on the first ground on which it was moved, and that the judgment appealed from should be affirmed.

Cases cited

Lightbody v. North American Insurance 23 Wend. 18 N.Y. Sup. Ct. p. 348