Shriver v. Stevens

Rogers, J. On a careful examination of the charge, the answers to the points and the authorities contain no error, except in one particular. The Court, speaking of the authority given to Gilbert as the a,gent of the company, say: “ He certainly had power to employ a physician to render aid to Mr. Moses, and if he had this power, it was within the scope of his authority to employ a physician for Walker.” The charge was therefore that Gilbert had authority to bind the Company for medical services to be rendered to Walker, and when the company wished to repudiate the contract, it was necessary, in order to do so, to give notice to Dr. Stevens. It does not follow as a legal inference, that because he had power to employ medical services for the passenger to whom they were liable for the negligence of their servants, that therefore they had given him authority to employ a physician for the other, who may have been the cause of the disaster. In the former case they were at least under a moral obligation; for the other they were not bound, either legally or morally. He had thrust himself into their service, without their leave, and was bound to pay for these services himself. It is a point in the case, but not such a one as justifies the binding force given to it in the charge. As the Court truly say, there were two questions. 1st. Did Gilbert contract for the services of Dr. Stevens for Walker ? And 2d. If he [260] did, had he the power to bind the defendants to the contract ? Both of these were questions of fact, one of which would seem to be withdrawn from the jury’s consideration by this part of the charge. Judgment reversed, and venire de novo awarded.