Southern Railway Co. v. Hazlewood

88 N.E. 636, 45 Ind. App. 478, 1909 Ind. App. LEXIS 289

• Court: Indiana Court of Appeals
• Decided: June 3, 1909
• Docket: No. 6,779
• Status: Published

Opinions

Roby, P. J.

Sait by appellee, a physician, against appellant railway company, to recover the value of services rendered an employe injured in appellant’s service. The complaint was in three paragraphs: (1) A common count for services rendered; (2) alleging that Orville Smith, a brakeman in appellant,’® service was injured while at work by being dragged from the top of a train, that he was placed in a hospital, and that appellant, by one of its agents or servants, employed appellee, a duly licensed physician, to treat Smith for his injuries; (3) alleging that appellant made a settlement with Smith for the damages he sustained, and agreed, as part of the consideration, to pay the bills of physicians who treated him. A separate demurrer to each paragraph as filed and overruled, and an answer in general denial was filed. The case was tried by a jury, which returned a verdict for appellee for $196.

Errors relied upon are the overruling of appellant’s demurrers to each paragraph of the complaint, and the overruling of its motion for a new trial. The demurrer to the third paragraph of complaint is as follows: “Defendant demurs to the third paragraph of plaintiff’s complaint, and for cause of demurrer says: Said second paragraph of complaint does not state facts sufficient to constitute a cause of action against this defendant.”

The evidence shows that during the night of March 14, 1906, Orville Smith, a brakeman, was injured while in appellant’s service, and was taken to New Albany, where he was examined by appellant’s regular surgeon, who at that time gave him no medical attention beyond prescribing a headache powder; that the next morning said Smith’s father, a physician who lived at a distance, came to see him, and dismissed appellant’s surgeon, whereupon appellee became the attending physician. T. M. McDonald, claim agent, or “assistant law agent,” called on the injured employe the same morning. There is evidence that he told Smith to keep Doctor Hazlewood and the company would pay for his services. Smith was later moved to a hospital, where, on at least two occasions, McDonald inquired how he was getting along, told him to let Doctor Hazlewood continue his treatment, and that the company would pay the bill. Doctor Hazlewood testified as follows:

‘ ‘ Q. What did ho [McDonald] say in reference, to your employment ?

A. He said that Smith was dissatisfied with the company ’s doctor, and that he wanted me to go ahead and look after him, and that I should rest easy about the bill; that the company would as soon pay me as any other doctor, and for me to keep account of my bill and the company would pay it.

Q. You say that was within a week or ten days after you had been treating him?

A. Yes, sir.

Q. In pursuance to that, did you proceed to treat this man?

A. Yes, sir.”

Appellee ordered a spinal brace for Smith from a surgical instrument house in Louisville, and the bill was sent to appellant’s general superintendent, and was paid. Smith testified that the settlement was made between himself and the company, by its agreeing to give him $5,300, and pay his hospital expenses and doctors ’ bills.

1. The first paragraph of the complaint was the common count “for services rendered at the special instance and request of defendant.” Railroad companies may employ surgeons generally, and therefore the paragraph was sufficient.

2. 3. Appellant urges that the claim agent had no authority to employ a physician. He had authority to compromise the claim against it and to minimize damages recoverable from it. The settlement which he made has been adopted. The employment of a competent surgeon might be one step in minimizing such damages and in procuring such settlement. It was therefore germane to the employment. Appellant, having held him out as possessing authority, is now estopped from denying it. Cruzan v. Smith (1872), 41 Ind. 288. The case of Louisville, etc., R. Co. v. Smith (1889), 121 Ind. 353, 6 L. R. A. 320, strongly relied on by appellant, is not in point. The authority of a conductor and of a claim agent rests on different bases. The natures of the two employments are essentially different. It was the duty of the “assistant law agent” to visit injured persons and to settle or compromise with them. The employment of a physician is reasonably incidental to these duties, and whether said agent acted within the scope of his authority, was a matter of proof. Bedford Belt R. Co. v. McDonald (1897), 17 Ind. App. 492, 60 Am. St. 172; Terre Haule, etc., R. Co. v. Stockwell (1889), 118 Ind. 98.

4. The promise of the railroad company to pay appellee is not within the statute of frauds, for two reasons: (1) The debt is the debt of the company. (2) Where a promise is made to a debtor to pay his debt to a third person, and sufficient consideration has passed between the debtor and promisor, an action may be maintained without the discharge of the original debtor. McDill v. Gunn (1873), 43 Ind. 315; Hyatt v. Bonham (1898), 19 Ind. App. 256.

Judgment affirmed.