The opinion
Hemingway, J. . ^ Railway— SjoífuT|éom Neither a conductor, station agent nor solicitor of a railway company is authorized, in ordinary cases, to contract for surgical attendance upon a passenger or employe injured in operating this trains of the railway company, so as to bind the company. Toledo, Wabash & Western R. R. Co. v. Rodrigues, 47 Ill., 188 ; Tucker v. St. L., K. C. & N. R. Co., 54 Mo., 177 ; Brown v. M. K. & T. R. Co., 67 Mo., 122 ; A. & P. R. Co. v. Reisner, 18 Kan., 458 ; Cooper v. N. Y. C. & H. R. R. Co., 6 Hun, 276 ; L. E. & St. L. Ry. Co. v. McVay, 98 Ind., 391 ; Cox v. Midland etc. Ry. Co., 3 Exch., 268.
It has been held that where such injury is done at a point distant from the chief offices of the company, and there is urgent necessity for the employment of a surgeon to render professional services to an injured employe, the conductor, if he is the highest agent of the company on the ground, has authority to bind the corporation by the employment of a surgeon to render the services required by the emergency. Terre Haute & Indianapolis Ry. Co. v. McMurray, 98 Ind., 358 . The authority existing in such cases is exceptional; it grows out of the present emergency and the absence — and consequent inability to act — of the railway’s managing agent; its existence cannot extend beyond the causes from which it sprang. This exception states the law most favorably for the appellee, and we do not hold that it does not state it too favorably; but, conceding it to be correct, his cause must fail. Neither of the subordinate agents engaged the appellee to attend the injured party during the emergency, if there was one. The conductor had notified the appellee that he could not bind the company for such services without instructions. He communicated with the general agent, and after such communication, if at all, engaged the appellee. After the general agent was advised of the injury and put himself in communication with the conductor on the subject, the emergency, which alone could have given the conductor implied anthority, terminated, and his right to act in the matter thereafter must have been acquired by express authorization.
The evidence shows that the conductor, after receipt of a telegram from the railway’s manager, engaged the appellee to perform surgical services; what the contents of the telegram was, does not appear, and hence the evidence fails to prove that the employment was authorized.
No assistance is to be had in the alleged employment by the attorney, for it is said to have been made the next day, and he is not shown to have been authorized to make it. In this respect there is no evidence to support the verdict. It is not shown that, after the alleged employment and during the services, any general agent of the company knew of it or that appellee was rendering service for which he would look to the company; there was no ratification of the contract.
authority — “a''en s °ar' The employment of a surgeon to render professional service would not bind the employer to repay sums advanced by the surgeon for board of the patient. The latter liability is not included in, nor to be implied from, the contract for the former. Mayberry v. C., R. I. & P. Ry. Co., 75 Mo., 492 .
For the error indicated the judgment will be reversed.