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between the plaintiffs and defendant concern- make the amendment to the original submission
ing the amount and validity of certain sewer so as to bind the plaintiffs.
assessments was pending before a judge of the If he had such authority it must have been
superior court under the Statute, and on tha: conferred upon bim by the plaintiffs as a mat-
day the parties agreed to subinit the matters ir ter of fact, expressly or by implication, or he
controversy to arbitration. The judge before had it by virtue of his retainer and employ.
whom the matter was pending was made a ment as an attorney in the case.
first the sole arbitrator, but another judge was The court finds that the plaintiffs did not
afterwards by agreement associated with expressly confer such autbority, but the de-
him.

fendant contends tbat he attorney bad an im. The written submission provided, among plied authority arising out of the special cir. Olber things, that tbe arbitrators, in hearing and cumstances of this particular case and his determining the controversy, and in taxing relations to it and to bis clients. If this last costs, sbould be governed by the laws applica claim means that the plaintiffs in fact conferred ble to such cases and by the rules of practice the authority by implication at least, then the obtaining in the trial of causes in the superior court below should have so found, for this is a court; tbat the written award to be made sbould conclusion of fact, and not being found this be returned to the Superior Court for New court cannot draw such conclusion. Had the London County, and that the court should ren-facts warranted such conclusion it is reasonable der judgment pursuant thereto.

to suppose the court would have so found. Under this submission, wbich was drawn up If, bowever, the claim means that the attor by the attorneys of the plaintiffs, and was ney bad such authority by virtue of his emsigned by the attorneys of both parties, a bear-ployment in the case and not oberwise, such ing attended by all the parties in interest was claim will be considered in connection with the bad before the arbitrators. Some months af next question in the case, which is, Did the ter the bearing was finished, but before the retainer ard employment of the attorney in the award was publisbed, one of the aliorneys em case confer upon him such authority? ployed by ibe plaintiffs, without the conseni That an aitorney-at-law retained and emor knowledge of bis associate, and without the ployed in a cause pending in a court of comauthority or knowledge of the plaintiffs, but mon law bas authority, without the consent or with the consent of the attorney of the defend knowledge of bis client, to submit such cause ant, so amended the written submission as to to arbitration by rule of court or under the dimake the award final and to give the arbitra rection of the court, seems to be established by tors full power to decide the matters referred numerous authorities and is not questioned by to them as ibey should consider right and just. the plaintiffs in the case at bar. And if the

Shortly after tbis amendment was made the attorney can under such circumstances bind arbitrators, without further bearing, and in bis client by the submission, we think it would pursuance of the powers conferred upon them follow that he could bind bim by an amendby the amended submission, published their ment made to the submission in good faith award.

without the knowledge or consent of bis client. As soon as the award and amendment came The defendant contends that the present caso to the knowledge of the plaintills they repudi- comes within the above rule, or, if not, he conated and disapproved of both, and of the ac- tends that an attorney-at-law, baving the mantion of their attorney in making the amend- agement of a matter in controversy, whether ment, and brought suit to restrain the defendant pending in court or not, is by law authorized to from enforcing the award and to bave it set submit the same to arbitration without the conaside, on the ground that the amendment ma sent or knowledge of his client or of the court. terially changed the submission and had been Let us examine the first of these positions. made without their autbority or knowledge. At tbe time the original submission was exeOn the trial of the suit in tbe court below the cuted the cause was pending before a judge of court found that the amendment was made the superior court under the Statute, and when in good faitb by the senior counsel in the case, the amendment was made the matter was pendthat he believed be bad full power to make it, ing before the arbitrators; and so it seems to and believed that it was for the best interests be claimed by the defendant that there was in of all concerned that it should be made. either case a cause pending in court within tho

A special finding was made, and on the facts above rule. 80 found the plaintiffs requested the court to Without determining whether this claim is a rule that the attorney who made the amend- valid one or not, it may for the purposes of ment had no authority to do so, but the court the argument be granted, and still it does not refused to so bold, and rendered judgment dis help the defendant. There is no pretense that solving the temporary injunction and for the either the submission or the amendment were defendant to recover its cost. From that judg. made under the authority or direction of the ment the plaintiffs appealed, and the sole ques tribunal before which the matters to which the tion made before this court is, whether the submission or the amendment relate were pend. court below erred in refusing to rule as re-ing, within the spirit and intent of the rule wo quested.

are considering: On the argument the defendant contended The submission was made in pais; with its that the amendment did not materially change execution the judge bad nothing whatever to the original submission and so did not affecido; and by its terms be had potbing further to the rights of the parties, but we are satisfied do with the submission or the matters involved that the amendment was a material one. therein. Tbis is true also of the amendment,

The main question then is, whether the at. even though made at the suggestion of the arlorney upon ibe fucts found was authorized to / bitrators, as the court finds. We thjuk, ibere

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fore, that the case does not come within either be attached to these dicta of English judges, it the letter or the spirit of the rule, because, even should be remembered that an attorney in Engif it be conceded that at the time the submis- land occupies towards his client a very differsion and amendment were made tbere was a ent relation from wbat he does in tbis country. cause pending in court, still both submission There he is frequently the general agent of and amendment were made in pais and not the client, and transacts a great deal of his under por in subjection to the autbority of the general business. But bere an attorney is gentribunal in either case. As to tbe otber posi- erally employed to attend to his client's interest tion of the defendant, we are satisfied that the in reference to some single controversy. weight of authority is against it.

"In Pennsylvania, 100, there are decisions The cases establishing an attorney's authority wbich might seem to imply that the power of to submit to arbitration a pending cause under an attorney to submit to arbitration was not the authority and direction of the court are confided to the making of a consent order in a somewbat numerous, and as is well said in pending cause to refer it to arbitration. See Marhley v. Amos, 8 Rich. L. 468, this of itself Bingham v. Guthrie, 19 Pa. 419. affords a fair inference that he cannot sub- “But in considering what weight should be mit in any other way."

attached to the dicta of Pennsylvania judges, We have been referred to no well-considered it should also be borne in mind that in Penn. case, nor do we know of any, which supports sylvania the authority of allorneys is more ex. this claim of the defendant. On the other tensive than elsewhere. See Lynch v. Com. band some of the authorities cited on the plain. 16 Serg. & R. 368: Wilson v. Young, 9 Pa. 101. tiffs' brief are directly against such a position. “While I bave found no case deciding that an See the cases of Jenkins v. Gillespie, 10 Smedes attorney has a general authority to submit liis & M. (Miss.)31; Morkley v. Amos, supra; Scar: client's controversies to arbitration, there are borough v. Reynolds, 12 Ala. 252; Morse, Arbi- cases in which it has been decided that he does tration and Award, 16.

pot possess such.general authority. See Jen. In addition to the cases cited there is the case kins v. Gülespie, 10 Smedes & M. 31; Scarbor. of McGinnis v. Curry, 13 W. Va. 29, decided ough v. Reynolds, 12 Ala. 252. in 1878, where the court holds that an attorney "It is true that these were cases in which there bas no authority, before or after suit brought, was no lis pendens. But it seems to me that, to make an agreement in pais to submit bis as it is held that an attorney by reason of his client's cause to arbitration without special au- being employed to institute a suit or defend a thority of bis client. So far as the reasoning threatened suit bas no authority to submit by and conclusions of the court in that case on the an agreement in pais signed by the attorney point in question bere are applicable to the the case to arbitration, that it must follow that case at bar we adopt them, and feel justified in he has no such authority thougb the suit be quoting from the opinion at some length. The pending. An authority to ac: in pais could court says: “The autbority of an attorney at only be inferred, if it existed, from his em. common law by a consent order made in the ployment before the institution of the suit as an court 10 submit a pending suit to arbitration attorney, and such employment as we have is universally admitied. And the court, in cases seen confers no such authority. where such a consent order bas been made at “This conclusion is not at all inconsistent the instance of counsel, have frequently spoken with the numerous cases deciding tbat an at: of the authority of counsel to submit a contro- torney has authority in a pending suit by an versy of bis client to arbitration in general order of court to submit the cause to arbitralanguage wbich would be broad enough to in. tion. When the courts have assigned any clude, not only a case of a submission of a reason for their decisions they have been based, controversy in a pending suit by an agreement not merely, if at all, on the employment of the of counsel in pais, but even in a controversy counsel by the client, but on the fact that he about wbich no suit was pending. But all the is an oflicer of the court acting in the presence cases in which such loose and general language and under the control of the court, and as such was used were cases where the authority of bus a right to take any legal steps be may deer counsel was exercised not only in a pending proper in prosecuting or defending the suit. suit, but by a consent order agreeing to the But this reasoning bas no application to any submission made in open court. See Wilson action of the attorney in pais, such as agreeing v. Young, 9 Pa. 101; liolker v. Parker, 11 U. S. to submit the case to arbitrators by an agree? Cranch, 449 [3 L. ed. 401]; Somers v. Bala- ment signed by bim without any special aubrega, 1 U. S. i Dall. 164 (1 L. ed. 83); Biny. thority from bis clients." ham v. Guthrie, 19 Pa. 418.

If an attorney cannot, without special au"In England, tbough, so far as I know, itthority from bis client, submit a controversy has never been decided ibat an attorney had a to arbitration by an act in pais, we ihink it right to submit his client's controversy to arbi- follows that he cannot by any like act, witbout tration wben oo suit was pending, or by an such authority, materially change a submission agreement in pais, and not by an order of already made or adopted by his client. To court when a suit was pending, yet there are bold otherwise would give the attorney power English cases from which it may be inferred to do indirectly what he has no power to do that the courts may there consider the power directly. of the attorney to submit bis client's cause to The case of Jenkins v. Gillespie, supra, was arbitration as general, and not confined to pend. a case where an attorney amended the original ing suits or to orders of reference made in courts. submission without autbority from his client, See Banfil v. Leigh, 8 T. R. 571; Re Jamieson and the court beld he was not bound by the act & Binns, 4 Ad. & El. 945.

of the attorney. The court says: “But ad“But in considering bow much weight should | mitting that an attorney bas in general power 10 submit, bas he power to change the terms | lief that the law under the circumstances gave of the submission made by the parties? That their attorneys no binding authority to make a would be to change their contract. . . . We material change in that completed contract. think it would be going too far to say his assent Inasmucb, therefore, as the court below to the change should bind bis client."

failed to find that the attorney had any au. In the case at bar, although the court finds thority from the plaintiffs to make the amendthat the submission was drawn and signed by ment, and we are of opinion that the law counsel who believed and were justified in the gave him none, we are constrained to hold that belief that the language and legal effect of the he had no authority to make the amendment so submission were intrusted to their judgment as to bind the plaintiffs. and discretion, still the submission was the We regret tbat the facts and the law bring contract of the parties, its language was theirs us to such a conclusion in this case, for the and theirs only, and in legal effect it bad all amendment was made and suggested in the the incidents of a contract of submission made utmost good faith, and was well adapted to by the parties out of court. They bad made it promote the best interests of all parties contheirs by ratifying and adopting what their cerned. attorneys had done, and bad been beard under There is error in the judgment complained of. such contract as completed. After such hear. In this opinion the other Judges concurred. ing the plaintiffs had a right to rest in the be

IOWA SUPREME COURT.

APPEAL bridefendants of remote cudement

George BECK

Messrs. Bleik Peters, D. B. Nash and

George E. Hubbell, for appellee: THE GERMAN KLINIK et al., Appts.

Plaintiff employed the defendants for reward,

to set, reduce, care for, cure and beal the (78 Iowa, 696.)

fractured limb. Under such contract the de

fendants not only obligated themselves to It is the duty of a physician who bas set a proper, ordinary and diligent care and treat

broken leg to give proper instructions for the use ment in the performance of their professional and care of it, and for failure to do so he is liable duties, but to continue such services so long as in case of a resulting injury.

the condition of the injured limb should require (Robinson and Granger, JJ., dissent.)

treatment.

Ballou v. Prescott, 64 Me. 305-313. (October 28, 1889.)

Beck, J., delivered the opinion of the court:

I. The defendaut, The German Klinik, is an of the District Court for Scott County in incorporation whose business appears to be confavor of plaintiff in an action to recover dam- nected in some way with the treatment of ages for failure on the part of defendanis to use diseased and injured persons; the defendants, due skill in treating plaivliff's broken leg. Gustave Hoepfner and others, are members of Affirmed.

the incorporation and surgeons and physicians The facts sufficiently appear in the opinions. baving charge of the patients treated by the Messrs. Heinz & Hirschl, for appellants: corporation. Plaintiff by some accident broke

Defendants would be entitled to judgment the bones of bis left leg, and employed defend. Dotwithstanding the general verdiet for plain- ants to treat bim. After treatment according to tiff, if it appeared by the special findings that the usual course pursued by surgeons, which plaintiff bad tailed to establish some fact was once or twice renewed by reason of tbe fact essential to his right of recovery,

tbat the patient bad not wholly recovered, the Conners v. Burlington, C. R. & N. R. Co. 71 plaintiff was tinally discharged from treatment Iowa, 492. See also Home 118. Co. v. Ilolucay, by defendanis or ceased further to employ or 55 Iowa, 571; Buird v. Chicago, R. I. & P. R. consult them. His leg not being wholly cured Co. 55 Iowa, 121; Gadl'oig v. Chicago, M. & St. became bent aud crooked, and finally, after P. R. Co. 75 Iowa, 530.

this suit was commenced, it was amputated by Defendants should not be held for a prema- other surgeons. ture abandonment, or for failing to give "in- This action is brought to recover for the in. structions” at or after the time the bandages juries plaintiff sustained by defendants' neglect were removed, unless specially so pleaded. and want of skill in the treatment of bis broken Bemus v. Ilovard, 3 Watts, 257.

limb. The law requires physicians to apply proper The cause was upon the evidence submitted remedies and exotises them if these fail. to the jury under instructions of which no Almond v. Nugent, 34 Iowa, 303,

complaint is made in this court. A general No presumption of negligence arises from verdict was bad for plaintiff and special findthe fact that a patient does not recover. ings in response to questions propounded by Ilaire v. Reese, 7 Pbila. 138.

Ibe court were returned by the jury. They The special tindings cover all the evidence are in the following language: introduced in this case, and absolve the defend 1. Did the defendants or either of them propants from negligence; bence judgment should erly set the plaintiff's leg on December 21, bave been eutered notwithstanding the general 1885? serdict.

A. Yes. O'Donnell v. Hastings, 68 Iowa, 272.

2. Did the said defendants, Jaenicke and Hoepfner, or either of them, properly treat the dence found in the original and amended ab. plaintiff from the day on which they set his leg stracts fully sustains this conclusion. up to the line at which they released him from Tbe plaintiff and two or more witnesses tes. the splint and bandages?

tify that the defendants directed plaintiff to A. Yes, but we do not consider it a perfect use his limb after the jy psuin bandages used cure when discbarged.

to keep the bones in place were removed, and 3. Were the methods and appliances which to walk with crutches, and that the gave do defendants used in plaintiff's treatment such as directions further as to the manner or extent of were found among tbe different methods and such use. There was evidence tending to appliances used and approved of by physicians show that the broken bone had not well who were possessed of and who exercised at united, either because of improper treatment least the average skill of the medical profession or because of its diseased condition, and that as a body at that time?

when the bandage was removed, or soon thereA. Yes.

after, the limb at the wounded part was 4. Was plaintiff's leg when taken from the crooked. These facts the jury were authorsplint and bandages as crooked, or pearly as ized to find from the evidence. They are crooked, as when ampulated ?

shown by the testimony of physicians and surA. No.

geons and other witnesses who testitied in the 5. Did plaintiff exercise ordinary care in the case. One of the surgeons, Dr. Grant, testifies use of bis leg after being released from the upon an examination of the limb after ampubandages?

tation, tbat there was a diseased condition of A. Yes.

the bone wbich might have been caused by Defendants moved that the general verdict be "a splinter or a muscle getting between the set aside, and that judgment be rendered for bones;” and in that case walking would irrithem upon the special findings. This motion tate and produce a tendency to disease." He was overruled and judgment was rendered for further declares, “I would instruct my patient plaintiff on the general verdict. This action not to walk on a leg I found not united.” of the court constitutes the only ground of com- "The least weight of the foot, after patient plaiot of defendants on this appeal.

commenced walking, would teod to separate II. It is insisted that the special findings that at the top” (pointing to a portion of the are inconsistent with tbe general verdict, and bone, having the amputated linb before him). are such as sbow that defendants are not liable "If the bope, when set, confined in its apparatus in this action, and therefore a judgment thereon for eigbt weeks, came out in that crooked conshould bave been rendered for defendants. dition or form, then the tendency of the use of

The instructions given to the jury are not that limb in walking would impair its efficomplained of by defendants. Among others ciency and would induce disease. The reci. the following are given:

tation of other evidence in the case is not de“When the defendants undertook the treat- manded to support our conclusion. ment of this case, the duty rested upon them to Upop the evidence we have quoted from the give to it such care and skill as the ordinarily abstracts and other evidence found therein, educated and skilled members of their pro- | the jury were authorized to find ibat plaintiff fession at the time would bave given to it, and bad no correct instructions as to the proper to give to the patient proper instructions for care and use of his wounded leg; that he had the care and use of the wounded limb. If the wrong instructions wbich directed bim to use evidence satisfies you tbat they did this then bis leg; that the diseased condition of the bone they did all that the law required of them, and was caused or aggravated by use of the leg they would not be liable. It is for you to say which defendants directed, and that with from the evidence before you wbether they gave proper instructions, wbich we will presume to the treatment of the case such skill, care and plaintiff would bave followed, bis leg would attention or pot, add to the patient proper in have been saved, or at least the disease of the structions for the care and use of the wounded bone would have been ameliorated and he . leg. If they did not they were guilty of negli. would bave escaped much suffering. There is gence, and would be liable for injury resulting nothing in the special findings of the jury in from such negligence, unless the evidence conflict with the finding of negligence in the satisfies you that plaintiff contributed to such failure of the defendants to give plaintiff proper injury by bis own negligence and want of instructions, or in the giving of in proper in.

structions as to the care apd use of his wounded It will be observed that this instruction de leg, upon wbich the general verdict was unclares, rightly enough, that defendants were doubtedly based. The jury found specially cbarged with ibe duty among oihers of giving ibat defendants properly set plaintiff's Jeg; plaintiff "proper instructions for the care and that they properly treated it until he was disuse of the wounded leg," and that if they omitted charged; and that they used proper and apthis duty they were guilty of negligence and proved methods and appliances in the treatwould be liable for injury resulting therefrom. ment of the leg; but it is nowhere found, The rule of law is doubtless correct; at all directly or by implication, that they gave plainevents, it is the law of this case and so recog. tiff proper instructions or did not give him nized by both parties, neither objecting to it. improper instructions for the care and use of

Now if the jury found that defendants failed bis injured leg. Defendants may have exer. in the discharge of duty stated in this instruc- cised proper care and used proper skill in all tion, they rigbıly found for plaintiff upon tbe things, yet under tbe law of the case, if they general verdict. There was evidence tending omilied to give plaintiff proper instructions for to autborize such a finding, which is sufficient the care and use of his wounded leg tbey were to support it. A brief reference to the evi- rightly held liable by the jury. As we have

care.

said, the jury were authorized to find for plain thereby insure a cure." Plaintiff was not tiff under the evidence on the ground of de under the personal care of defendants, but fendants' negligence by the omission to dis was treated at his own home. The splint and charge their duty to instruct plaintiff as to the bandages were removed about the 1st of Feb. care and use of his injured leg.

ruary, 1886. Plaintiff did not see defendants For these reasons we reach the satisfactory from that time until the month of June folconclusion that the judgment of the District lowing, when he went to them with a brother Court ought to be affirmed.

who had an injury wbich required surgical

attention. Defendants then noticed that the Robinson, J., dissenting:

Jimb was crooked and advised plaintiff that The special findings sbow that defendants he should have treatment at bis bome or in discbarged fully all duties which devolved hospital. He refused to bave it so treated, but upon them to the time when plaintiff was re. consented to have defendants place around the leased from the splint and bandages. They limb a plaster of paris bandage, wbich was dehad properly set the broken bones, and had signed as a support. That was removed in given the injured limb their personal super- about one monih; and defendants did not vision for eigbt weeks. Plainti (I was young again see plaintiff until near the end of that and healthy, and the uncontradicted evidence year. It was then found that the limb bad proves that under the conditions shown the continued to grow worse, but defendants were broken bones should have been healed when refused permission to treat it further. It thus the splint and bandages were removed. Wben appears that plaintiff refused to follow the ad. that was done defendants instructed plaintiff vice of defendants when given. to procure and use cruiches in walking. The The opinion of the majority ignores the fact special findings show that plaintiff exercised that even if defendanis neglected to give ordinary care in the use of his leg after that proper instructions to the plaintiff, yet they time. The instructions wbich plaintiff admits would not be liable for such peglect unless inhaving received from defendants necessarily jury resulted. The record before us contains informed him that ibe injured limb was not en- do evidence which even tends to show that the tirely cured; that he should use crutches in conditions of which plaintiff complains would walking and should be careful in using it. bave been avoided bad defeodants given inWbat furtber instructions, if any, should bave structions which were not given. been given, the record nowhere discloses. No It seems to me tbat the majority opinion evidence whatever was offered as to the in- casts upon defendants ibe burden of proving structions which should bave been given plain-wbat instructions, if any, should have been tiff when the splint and bandages were re given plaintiff; that such instructions were in moved,

fact given, or if omitted that none of the damThe jury were left wholly without the aid age of which plaintiff complains resulted of evidence to determine that matter. As from such omission. That the law does not they were not experts, the plaintiff was as impose such burden upon defendants is evi. 'competent to determine wbat instructions dent. Defendants are presi: med to have disshould have been given, and consequently the cbarged all obligations which rested upon then care and use of bis in jured limb which would until the contrary is shown. bave been proper, as were the jury. But the A part of the relief asked by defendants is jury found that he used ordinary care; there that ihe general verdict be sei aside because fore do damage could have resulted from the pot supported by the evidence, aud to that I failure of defendants to give such instructions Ibink they are entitled. Tbis does not seem to as the jury were competent to find should bave me to be a case wbere there is a contlict in the been given. The fact that a perfect cure bad evidence, but rather one where tbere is an ennot been effected when the split and bandages tire absence of evidence on the material issues, were discarded does not alier the case, under not settled by the special findings, to support the law as announced to the jury. They were the general verdict. charged that “a physician or surgeon, in un- Granger, J., concurs in this dissent dertaking the treatment of a patient, does not Petition for rebearing denied.

0.

ALABAMA SUPREME COURT.
GAFFORD et al., Appts.,

vor of plaintiff in an action to recover the pos

session of certain real estate. Affirmed.
STROUSE.

The case sufliciently appears in the opinion.
Mr. J. C. Richardson for appellants.

Mr. Charles L. Wilkinson for appellee. (....Ala.....) The possession by a wife of land under a

Clopton, J., delivered the opinion of the

court: parol gift from her husband is not adverse to

Both parties concede that J. M. Gafford was bis mortgagee while the husband resides with her

formerly seised and possessed of the land in upon the land,

controversy. Appellee, wbo was the plaintiff (January 31, 1890.)

in the circuit court, derives title under a mort

gage executed by him February 22, 1873. De the Circuit Court for Butler County in fa-' from Gafford to them, or either of them, by

A

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