Wells v. Pacific Railroad

35 Mo. 164

• Court: Supreme Court of Missouri
• Decided: July 15, 1864
• Status: Published

Opinion

Bates, Judge,

delivered the opinion of the court.

The petition in the case states that one William Miller, and two other persons who were then employed as agents and servants of defendant, were injured by a collision on the road of defendant, and plaintiffs were called upon as physicians by the agent of said company to attend to the said employees so injured; that, at the instance and request of the agent of defendant, plaintiffs rendered their services as phy-. sicians to said persons injured, and for which plaintiffs say that defendant owes them.

There was judgment for plaintiffs. The judgment must be reversed. The petition is defective in that it does not allege any promise by the defendant, or any fact from which the law would imply a promise. The allegation that the services were rendered at the instance and request of the agent of the defendant, is not an averment that they were rendered at the instance and request of the defendant itself. The defendant was not liable for the personal expenses of its servants or employees, unless such liability was assumed by contract; and if such contract shall have been made by a supposed agent of the defendant, the authority (special or general) of the agent must be proved as in any other case.

Judgment reversed and cause remanded.

Judge Dry den concurs; Judge Bay absent.