This doctrine seems to be opposed to the weight of authority. See cases collated in Vol. 18, “Am. and Eng. Cyclopædia of Law,” p. 434 et seq., some of which are: Toledo, etc., R. R. Co. v. Rodrigues, 47 Ill., 188; Same v. Prince, 50 Ill., 26; Indianapolis, etc., R. R. v. Morris, 67 Ill., 295; Cairo, etc., R. R. Co. v. Mahoney, 82 Ill., 73; Atchison, etc., R. R. v. Beecher, 24 Kansas, 228.
Same Rule does Not Prevail in United States in Case of Accidents to Passengers.—The cases just noted were all cases of employees. In the cases of injured passengers it has been doubted whether the same rule applied, some State courts holding that in that case there is no obligation to furnish medical and surgical attendance, but that the physician attending must look to the persons whom they attended. Union Pacific R. R. Co. v. Beatty, 35 Kansas, 265; Brown v. Missouri, 67 Missouri, 122.
Different in England.—In England a different rule prevails—one more humane and in consonance with the moral obligation imposed by the relationship of the parties. In Walker v. The Great Western R. R. Co., a recent case (Law Reports, 2 Exch., 228), Chief-Justice Kelley, in the course of the argument, made this remark: “Must a board be convened before a man who has his legs broken can have medical attendance?”
But in Cox v. The Midland Counties R. R. Co. (3 Wellsby, H. & G., 268), the station master, employed as the chief officer of the passenger and other departments, called in a surgeon to perform an operation upon a passenger injured by a train. The road was held not liable.
On the other hand, in Langan v. Great Western R. R. Co. (30 Law Times, N. S., 173), a sub-inspector of railway police was held to have implied power to employ a surgeon for an injured employee. But in Arkansas an attorney for a railroad company was held not authorized to do so. St. Louis, etc., R. R. Co. v. Hoover, 53 Ark., 377.
Doctrine in Indiana the More Sensible One.—The more sensible doctrine seems to be established in this country, in the State of Indiana at least, in the case of Terre Haute R. R. Co. v. McMurray (98 Ind., 358), in which the Court held that where there was great necessity for the employment of a surgeon, the conductor of a train has authority to employ the surgeon, if the conductor is the highest officer in rank on the ground at the time. But in that case the Court expressly states that this liability grows out of the exigencies of the case; not out of any theory of general authority.
Authority of Railroad Physician to Employ Nurses, etc., Doubtful.—It has also been disputed whether the authority of the company’s physician extended far enough to render the company liable for services performed by nurses employed by him, or for board and lodging engaged by him for injured employees. In Bingham v. Chicago, etc., R. R. Co. (79 Iowa, 534), it was held that the authority was sufficient, but in that case testimony appeared tending to show that an agent of the company who had authority to employ the physician had authorized him to employ two nurses. The converse doctrine—namely, that the fact that a physician of the company was authorized to buy medicines on the credit of the company does not authorize the inference that he has power to render the company liable by a contract for board and nursing of a person injured on the company’s road—was held in Maber v. The Chicago, etc., R. R. Co., 75 Missouri, 495; Brown v. The Missouri R. R., 67 Missouri, 122. To the same effect, see Louisville, etc., R. R. Co. v. McVeigh, 98 Ind., 391; Cooper v. N. Y. C. & C., 6 Hun, 276; and St. Louis, etc., R. R. Co. v. Hoover, 53 Arkansas, 377. 2 Redfield on Railways, 114:
On the other hand, where a physician and surgeon has been duly employed by a sub-officer or servant of the railroad company, ratification of this employment, by those having authority to employ him and to render the company liable, will be inferred from slight circumstances.
Such was the case of Louisville R. R. Co. v. McVeigh, which has been cited.
And in another case where information of the fact of the employment had been conveyed to the company’s general manager, and he had neglected and omitted to repudiate the employment or to terminate it, and the surgeon went on and performed services, it was held that from these facts a ratification will be inferred. Indianapolis R. R. Co. v. Morris, supra. See also Toledo, etc., R. R. Co. v. Rodrigues, supra; Same v. Prince, supra; Terre Haute, etc., R. R. Co. v. Stockwell, 118 Ind., 98.