Survival of cause of action. to determine the measure of damages. However much the husband, widow, or next of kin may suffer pecuniarily by the act causing death, it constitutes no cause of action, independent of evidence that it was occasioned by the wrongful or neg ligent conduct of another." Again, the court say: "It will be observed also that the statute, although creating a new cause of action, and passed for the express purpose of changing the rule of the common law in respect to the survivability of actions, and conferring a right upon representatives which they did not before possess, does not undertake either expressly or impliedly to impair the equally stringent rule which precluded the maintenance of such actions against the repretatives of the offending party." It is thus seen that, of the two cases referred to in support of the doctrine held by the majority of the court, only one of them supports it, and that by a divided court, while the other and later case in the same court announces a contrary doctrine, and supports the views expressed in this opinion. Before the adoption of this statute, (8 2961, 2962, 2 Comp. Laws 1888) a party injured by the wrongful or negligent act of another could recover for his injuries under the common law, but, if he died from his injuries without having done so, his cause of action died with him, and did not survive or continue to his personal representatives or heirs. The very object, and in fact the only object, of the statute was to change this common law rule, and create a survivorship of the cause of action in favor of his personal representatives, by taking away the immunity which his death afforded the wrongdoer; and, under the sections above referred to, his personal repre. sentative could maintain an action against the party whose wrongful or negligent act caused his death, and this right was extended to the heir by § 3179, adopted at a later period. Upon both reason and authority, the wrongful act which causes the death constitutes the cause of action in this class of cases, and under the statute survives or continues to the personal representative or heir. The original plaintiff in this case having begun his action against the defendant for a wrongful act, which it is alleged resulted in his death after the action was begun, and his administrator having been substituted as plaintiff, the cause should have proceeded to trial. Under 3187 of our statute, which provides that an action does not abate by the death of a party where the cause of action survives or continues, but may be continued by his personal representatives, this action did not abate, and should not have been dismissed by reason of the death of the plaintiff. Survival of Action for Trespass to Person.-See Winnegar 7. Central Passenger R. Co. (Ky.), 34 Am. & Eng. R. Cas. 462; Hannah v. Richmond D. R. Co. (N. Car.), 10 Id. 735. * * * * Action for Death-Who May Sue-" Heir, "-Section 3, chap. 57. Gen. St. Ky., provide: "If the life of any person * is lost or destroyed by the willful neglect of another person, * company, corporation, * their agents or servants, then the widow, heir, or personal representative of the deceased shall have the right to sue such person, company, corporation, *and recover punitive damages for the destruction of the life aforesaid." The word "heir" in this section is equivalent only to child, and no right of action exists in favor of a father for the death of his son. The court said: “The word heir and 'distributee' are, when technically considered, not interchangeable. The first applies to an estate of inheritance. The heir takes the land, but not the personalty. The word does not describe one who takes assets in the form of money from a personal representative, and in popular usage is more often used as meaning child 'than 'distributee. ' Prior to the enactment of the statute in question, our legislature had given the widow and minor child of one killed in a duel a right of action against the surviving principal and all the promoters of it, with the right to also recover punitive damages. Then came the act of 1854 as to a killing by negligence; and in 1866 the legislature enacted a law by which the widow and minor children' of one killed by the careless, wanton, or malicious use of firearms were given a right of action against the offender for reparation of the injury, with the right to the jury to give punitive damages. All of these statutes were incorporated into our General Statutes, which were designed to constitute a general system of law, and, being in pari materia. should be construed alike, unless the language used forbids it. There is no good reason why the benefit of the recovery in the one case should be confined to the widow and children, and in the other reach to the remotest relative, who was in no way dependent upon the deceased, and who suffered no loss by his death. It follows that, as the deceased left no widow or child, this action cannot be maintained under the third section of the statute under consideration; and as the appellee, as father, had no right to sue under the first section of it any more than under the third section, the demurrer to the petition should have been sustained, and the action dismissed. It is so ordered, and judgment reversed." Louisville & N. R. Co. v. Coppage, Ky. Ct. of Appeals, June 21, 1890. Damages for Death by Wrongful Act-Matters to be Considered by Jury.— In Tutuer v. Chicago & N. W. R. Co., Wisconsin Sup. Ct., Oct. 14, 1890, it was held that under a statute (Rev. St. Wis. § 4256), expressly authorizing a jury, in an action to recover damages, for death caused by a wrongful act, to give such damages, not exceeding a certain amount, as they deem fair and just in reference to the pecuniary injury resulting from such death, to the relatives named, where an action was brought by children for the negligent killing of their mother, the jury may take into consideration the number of years the intestate would probably have lived, had it not been for the injury; the reasonable expectation of the amount of her property being increased; and the expectation of pecuniary benefit to the children by way of support or otherwise, had the deceased continued to live without such injury. The mere fact that the children were all of age at the time of their mother's death did not preclude them from recovering for the loss of such pecuniary benefits as they had a reasonable expectation of securing. In Hutchins v. St. Paul, M. & M. R. Co., Minnesota Sup. Ct., June 27, 1890, which was an action under the statute of Minnesota for the death of a person caused by the wrongful act of the defendant, it was held that the damage was purely compensatory for pecuniary loss, and no compensation could be given for wounded feelings, or for the loss of the comfort of companionship of a relative, or for the pain and suffering of the deceased. It was said that the jury should estimate damages upon probable pecuniary loss to the widow or next of kin by reason of the death of the deceased, in view of all the facts and circumstances in evidence, and if the verdict was greatly in excess of the sum thus arrived at, the court should set it aside, or reduce it. CINCINNATI, INDIANAPOLIS, ST. LOUIS & CHICAGO R. Co. บ. DAVIS. (Indiana Supreme Court, November 19, 1890.) General Superintendent-Authority to Employ Surgeon. The general superintendent of a railway company has authority to employ a surgeon to give attention to persons injured by the trains of the company, and in an action by a surgeon so employed, evidence is not admissible on behalf of the company to prove that it had in its employment a chief physician and surgeon, whose duty it was to employ surgeons to give attention to persons injured. Same-Duty of Surgeon Employed to Make Inquiries as to Authority of Officer, and Company's Liability.-A surgeon employed by the general superintendent of a railroad company to attend a person injured by one of the company's trains, does not have imposed upon him the duty of making inquiry as to the scope of such superintendent's authority, or to determine whether the injured man was hurt under such circumstances as rendered the company liable. APPEAL from Decatur County Circuit Court. Ewing & Ewing and John T. Dye, for appellant. ELLIOTT, J.-The appellee, at the time he was employed to render the professional services which he seeks to recover the value of in this action, was a physician and surgeon in regular practice at Morris, in this state. He was employed directly by one of the appellant's conductors, by whom he was informed that a telegram had been received from the appellant's general superintendent, authorizing his employment to give professional attention to a man who had been injured by one of the appellant's trains. The telegram of the superintendent was addressed to the conductor, and reads. thus: "Stop at Morris and see if you can get Dr. Davis to go to Newpoint to attend to a man that got hurt there this P. M. If you can get him, carry him to Newpoint." Under this employment the services for which compensation is sought were rendered by the appellee. The appellant offered to prove that it had in its employment a chief physician and surgeon, whose duty it was to employ surgeons to give professional attention to persons injured by its trains, but the evidence was excluded. There was no error in exclud ing this evidence. It was immaterial whether the appellant had or had not a chief surgeon in its service, charged with the duty of employing subordinate surgeons, for there is no pretense that the appellee had notice of that fact. He was not bound to look beyond the general superintendent as the source of authority warranting his employment. It is quite well settled that a general superintendent has authority to employ surgeons to give attention to persons injured by the trains of the company he represents; and it is rightly so held, for it would be unreasonable to require a surgeon to give professional assistance to a person injured by the company's trains, and then deny him compensation upon the ground that the superintendent had no authority to employ him because that authority was lodged in a chief surgeon. Nor are we willing to sanction a rule imposing upon the surgeon, whose services are requested by the superintendent, the duty of making specific inquiry as to the scope of the superintendent's authority. Such a rule would operate harshly in many cases, for, if the surgeon must stop to make inquiries before leaving his home or office, the injured man might perish. Better railroad companies should be held responsible for the acts of such a high officer as a general superintendent, although as between him and his principal that officer may usurp authority that is vested in a subordinate agent, than that a surgeon who obeys the summons of the superintendent should be compelled to go unpaid. It is the company that selects the superintendent, places him in a position of power, and invests him with ostensible authority, and, if he betrays his trust, the principal by whom he was put in a position of that character should bear the loss, and not the surgeon who, in good faith, acts upon the appearances created by the company. It is a familiar rule that instructions to a general agent do not bind one who deals with the agent in ignorance of such instructions, and acts upon the apparent authority with which the principal has clothed his representative; and there is no conceivable reason why the rule should not apply in all its force to such a case as this. But the question of the authority of a general superintendent to employ a surgeon is settled by the adjudged cases, and requires no extended discussion. Louisville, N. A. & C. R. Co. v. Smith, 121 Ind. 353; Terra Haute & I. R. Co. v. Stockwell, 118 Ind. 98, 37 Am. & Eng. R. Cas. 278; Terre Haute & I. R. Co. v Brown, 107 Ind. 336; Terre Haute & I. R. Co. v. McMurray, 98 Ind. 358, 22 Am. & Eng. R. Cas. 371; Louisville, E. & St. L. R. Co. v. McVey, Id. 391, 22 Am. & Eng. R. Cas. 382. The principle which rules our later decisions was declared in the earlier case of Railroad v. Haskell, 11 Ind. 301; and these cases do no more than extend a settled principle to new instances. The principle declared by these decisions is that an officer of such a high rank as general superintendent is presumed to possess authority to employ surgeons and nurses to render service to persons injured by the trains of the company. Having adjudged that the appellant's general superintendent has authority to employ a surgeon to minister to a person injured by its trains, we have effectually disposed of the case, and little more need be said, for, if he had such authority, the surgeon employed by that officer was not bound to institute an inquiry for the purpose of determining whether the injured man was hurt under such circumstances as rendered the company liable. It was enough for the surgeon to know that he was employed by a superior officer of general and extensive authority, without inquiring whether the company was bound to respond in damages to the injured man. Judgment affirmed. Authority of Railway Officers and Employes to Bind the Company by Contracts for Medical Services Generally. It is a matter of frequent occurrence for railway officials, and even subordinate employes, as conductors and station agents, to engage physicians and nurses to attend upon employes and passengers injured in railway accidents. The bills for services so rendered are often disputed on the ground that the officer or servant contracting for them acted ultra vires. The cases passing upon the authority of different railway agents in this respect will be reviewed in this note. Primarily, where a physician attends upon persons injured in a railway accident, the liability of the railroad company for such services, must depend upon the contract. Ellis v. Central Pac. R. Co., 5 Nev. 255. The physician's services must have been rendered upon the credit of the company. Thus, where a person was injured, and a physician having been called in, the agent of the company during the treatment requested the physician to continue the treatment, and promised on the company's behalf to pay the bill, it was held that the company was nevertheless not liable unless the jury believed that the services were rendered on the company's credit. Northern Central R. Co. v. Prentiss, 11 Md. 119. Superintendent.-By the weight of authority it is held that the general superintendent of a railway company may, in the exercise of his powers as such, bind the company for the payment of expenses, for nursing and medical attendance necessary to cure an injured employe. Toledo, W. & W. R. Co. v. Rodrigues, 47 Ill. 188; Toledo, W. & W. R. Co. v. Prince, 50 Ill. 26; Indianapolis & St. L. R. Co. v. Morris, 67 Ill. 295; Cairo & St. L. R. Co. v. Mahoney, 82 Ill. 73. Thus where a laborer on a railroad is injured while in the service of the railroad company, a telegram from the general superintendent directing one of his subordinates to employ a physician and do all he can to save the injured limb and make the sufferer comfortable, is authority for a contract binding the company to pay for the board and care of the injured party while recovering from the injury. Atchison & Nebraska R. Co. v. Reecher, 24 Kan. 228, I Am. & Eng. R. Cas. 343. In the case of Marquette & O. R. Co. v. Taft, 28 Mich. 289, however, a |