Carson v. Chicago, Milwaukee & St. Paul Railway Co. ( 1917 )

Preston, J.

(dissenting). — I agree that the evidence is not sufficient to justify the finding of the jury as to the Zania item of $25. The substance of the evidence is that the doctor had, prior to the services he performed for Zania, done work for injured employees of the company sent him by Haskell; and the argument is that he had a right to presume, from this usual course, that he was performing this service for the company. But this assumes - that the patient Zania was sent by Mr. Haskell, but I think the evidence is not sufficient to show that fact. The doctor testifies, over objection, that he had a book account of the charge for the Zania treatment, and that he had charged it to the defendant. But this charge of itself would amount to nothing unless the company, or someone authorized, or ostensibly authorized, employed the doctor.

I dissent, however, from the holding of the majority as to the patient Watson. I think there is other evidence in the record that has a bearing, but I shall not take the time to set it out. It seems to me that the evidence was sufficient to take the case to the jury, as to the Watson items, on the question as to whether Haskell had been clothed by the defendant with apparent or ostensible authority, and to show that plaintiff, in good faith, relied thereon, and was misled.

I would affirm on condition that appellee file a remittitur for the Zania charge.