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Garrey v. Stadler.

rendered one Dr. Fleischer was his attending physician and surgeon, and that the appellant was called in for consultation with Dr. Fleischer and to aid and assist him in a surgical operation to be performed on the person of the defendant; and he further alleges that there was an existing contract between the respondent and Dr. l·leischer, by which contract Dr. Fleischer was to pay for any assistance or consulting physicians or surgeons he might need in properly treating the defendant in his then present sickness; that the appellant was called by Dr. Fleischer to attend the defendant and to assist in a surgical operation which was proper and necessary in treating the defendant; and insists that the appellant must look to Dr. Fleischer for his pay. There is not a particle of evidence in the case showing that the appellant had any knowledge of the existence of the alleged contract between the defendant and Dr. Fleischer at the time the appellant performed the services for which he demands pay from the defendant; and the evidence further shows that the appellant was called in for consultation and assistance first by Dr. Fleischer, with the knowledge and assent of the difendant, and that he was present at the surgical operation at the request of the defendant himself. Upon this evidence it seems to us that the court would have been justified in directing a verdict for the plaintiff.

If he was not entitled to have the court direct a verdict in his favor, he was clearly entitled to have the jury instructed as requested in the third instruction asked by him, viz.: “If a physician, at the request of an attending physician, renders surgical services to a patient, even if there be an agreement between the attending physician and the patient that he, the attending physician, shall pay the expense of the surgical services of the consulting physician, the latter, being ignorant of such agreement, is entitled to recover, under an implied contract, from the party to whom and for whom such services were rendered, what the same are reasonably worth.” Instead of giving this instruction, or one in substance like it, the learned Circuit judge submitted the case to the jury on the theory that if the defendant himself had reasonable grounds for believing that the plaintiff was in the employ of Dr. Fleischer, and that the plaintiff so understood it, then he could not recover. This instruction is, in substance, that if the plaintiff and defendant had both reasonable grounds for believing that the plaintiff was in the employ of Dr. Fleischer when he performed the ser

Garrey v. Stadler.

vices for the defendant, then he could not recover. We think there was nothing in the evidence upon which this instruction could be based, so far as the plaintiff was concerned. There is nothing in the facts proven on the trial that tends to show that the plaintiff supposed he was in the employ of Dr. Fleischer. On the other hand, all the evidence tends to show that he understood that he wis in the employ of the defendant, and that he had no reason for b lieving that he was in the employ of Dr. Fleischer. Whaterer m:ly have been the belief or understanding of the defendant on the subject, such belief could not release him from liability to the plaintiff for the services performed, in the absence of any evidence tending to show that the plaintiff had knowledge of the contract Letween him and Dr. Fleischer.

The case of Shelton v. Johnson, 40 Iowa, 84, is similar to the one at bar; but the facts set up in the answer, to which a demurrer was sustained in favor of the plaintiff, were more favorable to the defendant than the facts proved in the case at bar. In holding that the facts set out in the answer did not constitute a defense, the court say: “ Where a party, knowingly and without objection, permits another to render service for him of any kind whatever, the law implies a promise to pay what the same 'is reasonably worth. If the plaintiff bad bern called to visit defendant by one having no pretext of agency or authority to do so, and defendant had, without objection, received the services of plaintiff, the law would imply a contract to pay for them. If this is the rule where no authority whatever is conferred, why is it not also the rule where a limited authority, such as that set forth in the answer, is conferred? The answer admits that Findley was authorized to call plaintiff to defendant's residence for the purpose of consultation. It alleges that the consultation was for the benefit of Findley, the attending physician, and was to be at his expens. It admits also that the plaintiff did not know of this arrangement between defendant and Findley. The understanding between the defendant and his attending physician introduced into the transaction an element unusual and exceptional, VIZ., that the consultation should be for the benefit, not of the invalid, but of the physician; and as a consequence of this agreement, the promise which the law implies is shifted from the defendant to his physician. Now as the effect of this agreement is to produce results unusual in their nature, the plaintiff ought not in justice Garrey .v. Stadler.

to be bound by it, unless he had knowledge of it.” In this case the answer showed that Findley, the attending physician, had been very much criticised for his treatment of the defendant and his family, in which two deaths had occurred while he was treating them, and that Findley proposed the calling in of the consulting physician, at his own expense, for the purpose of showing that his ppactice was proper and not subject to such criticism, and for that reason, the claim made by the defendant, that he should not be charged., with the expense of. consnltation, had a more plausible ground to support it than in the case at i bar,, where the evidence shows that calling in the services of the consulting physician was solely for the benefit, andi necessary for the proper. treatment, of. the defendant.

A similar ruling, was made in a case in the same court, in favor of the services of attorneys who were brought into the case at the request of one of the defendants,',who was also an attorney and had agreed to defend the : action and pay: all, attorney's fees. The defendants were all held liable to pay for the services of the assisting attorneys, on the ground that the services were performed for. the defendants, with their knowledge and consent, the assisting attorneys not knowing of the agreement existing between them and the attorney who was their.co-defendant. See: McCrary.y. Puddick, 33 Iowa, 521.

Whether the rule of liability be as broad as stated by the learned court in the first case above cited, it is certainly broad. enough to cover all cases where the service is performed for the personal comfort or convenience of the party with his consent and without abjection or notice that such service is to be paid for by some other. person. As the law in such case implies a promise to pay what the service is reasonably worth on the part of the person for whom such service is performed, such. implied promise must be overcome by evidence showing that the person performing the service knew that there was a different arrangement: for the payment of such service, to which he expressly or impliedly assented.

This rule is peegliarly applicable to the service of a physician. We think we are justified in assuming that it is quite exceptional for the members of that profession to undertake the treatment of their patients oni special contracts by which they are to be paid a som in gross, and by whicht: they bind themselves personally with their patients to pay four any needed assistance in the proper

Schultz v. Chicago and Northwestern Railroad Company.

treatinent of the case; and when such a case does occur in the profession, it is, as said by the learned court in the case above cited, an unusual and exceptional case, and one of which another physician called in consultation or otherwise is not bound to inform himself before rendering the required service. If the exceptional contract is to bind the consulting or assisting physician, it must be brought to his knowledge before his services are accepted by the patient; otherwise it can have no weight in determining the liability of the patient to pay for the service performed by such physician. See also upon this subject, James v. Bixby, 11 Mass. 34, 36 and the other cases cited by the counsel for the appellant in their brief.

BY THE COURT. — The judgment of the Circuit Court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

SCHULTZ V. CHICAGO AND NORTHWESTERN RAILROAD Co.

(67 Wis. 816.)

Master and sercant railroad negligence coal falling from tender

assumption of risk - Co-servants.

A railroad track-walker sued the company for personal injuries by the fall of

a lump of coal from a tender on which it was carelessly piled up. His own testimony showed that he knew the habit of thus overloading tenders and had seen lumps of coal on the track. Held, that he could not recover, (1), because he assumed the risk; (2) because there was not necessarily any neg. ligence in this manner of piling the coal; (3) because the coal-heavers and firemen were fellow-servants with the track-walkers.

ACTION for personal injuries by negligence. The opinion states A the case. The defendant had judgment below.

Winsor & Winsor, for appellant.

Jenkins, Winkler and Fish & Smith, for respondent.

ORTOX, J. The plaintiff had been in the employment of the defendant company as track-walker from Elroy to Kendall, whose business it was to go over the track and see that every thing was in order, and if any thing was out of order to fix it, or if dangerous, to stop the trains. He had been thug employed about six months,

VOL. LVIII – 111

Schultz v. Chicago and Northwestern Railroad Company.

but had been employed along this portion of the track about other business of the company about four years, and was well acquainted with the passing of the trains and the management of things generally along that portion of the track. On the night of the 22d of April he started about six o'clock in the evening to walk his route or beat from Elroy to Kendall and when he had arrived near Kendall he found a bolt out of place and stopped to fix it; and while so engaged he saw the train coming out of Kendall, and he waited until it came about three lengths of a rail from him, and then he stepped off the embankment and down toward the water of a mill-pond there, about six or seven feet. The track came within a little over three feet from the top of the embankment, and there the bank sloped down to the water, and it was level at the bottom a short distance from the water. While he was thus standing on the fireman's side of the engine he looked into the engine as it passed and saw the fireman doing something in the cab, and when the tender was passing him he saw a dark object fall or was thrown from it, and it struck him in the side and injured him quite severely. He fell down, and was helpless, and was assisted to Kendall. He saw near where he lay a piece of coal about the size of a man's soft hat, and it appeared that that was what hit him, and that probably fell from the tender. He saw that coal on the tender was above the top of it before the train reached hiin. He had seen pieces of coal lying along the track, and knew that coal sometimes fell from the tender. Kendall was the regular station for loading coal to last to Baraboo. In the course of his business, he had usually met about eight freight trains and three or four passenger trains per day on that part of the track. It was about eight o'clock that evening when the accident occurred, and it was not very dark, bnt he had a lantern. He had before seen coal above the top of nearly every tender that passed on the road, but had never known coal to fall off in this way before. The same train usually passed him every day. The fireman usually loads at Kendall what he thinks is sufficient coal for the run. This is substantially all the testimony of the plaintiff and other witnesses for him.

The plaintiff sought to prove what had been the customary way of loading coal, as to piling it up above the top of the tender, about that time and for two or three years before. This was objected to, and the objection sustained. At the close of the plaintiff's testi. mony the Circuit Court granted a nonsuit in the case.

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