Pittsburg Construction Co. v. Gannon

46 App. D.C. 131, 1917 U.S. App. LEXIS 2514

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 5, 1917
• Docket: No. 2970
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

A general exception was noted to the action of the court in receiving evidence to the effect that young Hampton, when- he arrived at the hospital with the injured man, alluded to himself as the general manager of the defendant company. It now is urged that this proof was admitted out of time. This contention should have been made in the trial court, but, aside from the failure of the defendant in that regard, it may be observed that the question as to when such evidence shall be received is largely within the discretion of the trial court. Harris v. Fitzgerald, 75 Conn. 72, 52 Atl. 315.

It next is urged that the court erred in permitting Hoffman to testify that the defendant had settled with him for his injuries. Evidence of this character tended in some degree to show that Hoffman was injured in the line of his duty, and that there was at least a question as to the responsibility of the defendant for such injuries. Therefore this evidence would have some bearing upon the question of the probability of young Hampton promising that the defendant would be responsible for his medical and surgical attention, and, in the circumstances disclosed by the evidence, whether Hampton, Senior, ratified and adopted what had been done by his son.

At the close of all the evidence a motion was made for a directed verdict for the defendant, and the refusal of the court to grant this motion is assigned as error. It is conceded that the evidence is conflicting on the question whether young Hampton undertook to charge the defendant company, and well it may be, for several witnesses testified for the plaintiff on this point, and the only evidence to the contrary was the testimony of young Hampton. It may be noted that, notwithstanding that the defendant’s bookkeeper assisted young Hampton in taking Hoffman into the hospital, he was not called as a witness. Without stopping to inquire whether, under the facts of this case, young Hampton had implied authority to employ a physician and surgeon at the defendant’s expense (see Texas Bldg. Co. v. Albert, 57 Tex. Civ. App. 638, 123 S. W. 716; Cincinnati, I. St L. & C. R. Co. v. Davis, 126 Ind. 99, 9 L.R.A. 503, 25 N. E. 878; Harris v. Fitzgerald, 75 Conn. 72, 52 Atl. 315), it is clear that the action of the court may he sustained upon another ground. Young Hampton lived with his father, who himself testified that the evening of the accident his son informed him of it and that he had taken Hoffman to Georgetown hospital. Not only that, hut it is nowhere denied that he received the bill sent him by the plaintiff during the course of Hoffman’s treatment and that not until the receipt of the final hill a month later did he indicate any intent to avoid payment for the services rendered his employee. Quite apart, therefore, from young Hampton’s authority to hind the defendant, there was ample evidence to go to the jury on the question of ratification.

The refusal of the court to charge the jury that unless they found that the services rendered by the-plaintiff “were performed in pursuance of an expressed contract, made by an agent, who had full authority to bind the defendant company, their verdict must be for the defendant,” also- is assigned as error. This proposed charge failed to take into account the evidence of ratification, and was otherwise objectionable in that it required greater formality when the services of the plaintiff were sought and obtained than the law requires.

There were other requests to charge. However, we do not deem it necessary to discuss them, or the vague and general exceptions to the charge as given.

Finding no reversible error,, we affirm the judgment, with costs. Affirmed.