« EelmineJätka »
552; 8. C., 41 N. Y. 619; Hurlbut v. Durant, 88 id. 216. When legacies are charged upon land, the rules of the common law govern them, though no action at law can be sustained to enforce them, the remedy being entirely in equity.
As we have seen when legacies are of personalty, the
geon. The conductor of the train, no superior officer of the company being present, requested the plaintiff to render such professional aid as was needed, and told him the company would pay him. Held, that the company was liable.
Fules governing them are derived from the civil law THE opinion states the facts.
from the fact that those legacies were properly coguizable in the ecclesiastical court. The distinction is
ELLIOTT, J. The facts in this case are simple, and plainly indicated when bequests are in terms imme
lie within a narrow compass, but the questions of law diate, and only the payment is postponed.
are important and difficult. When the legacy is payable out of personal estato
Fraukfort is a way station on the line appellaut's the legacy vests immediately, but in the case of lega- road, distant many miles from the principal offices of cies charged on real estate this is not the case, because
the company and from the residences of its chief officourts of equity in England, from motives of public
At this station, at one o'clock of the morning of policy, desired to protect the interest of the heirs at
July 2, 1881, Thomas Coon, a brakeman in the service law.
of the appellant, had his foot crushed between the We have left ourselves no space in which to discuss
wheel of a car of the train on which he was employed the various classes into which legacies are divided, nor
as a brakeman and a rail of the track. The injury was to speak of the marshalling of assets out of which to
such as demanded immediate surgical attention. The
conductor of the train requested the appellee, who was It will be sufficient to say here, on the latter subject
a surgeon, residing in the town of Frankfort, to renthat the leading rule is that the personalty is the
der the injured man professional aid, and informed proper fund for the payment of legacies, even though
the appellee that the company would pay him for his they are charged on real estate, provided the personal
services. At the time the accident happened, and at estate is not in express terms exonerated. Code Civ.
the time the surgeon was employed, there was Pro., § 1859. It is said in such a case that the realty is
no officer superior to the conductor at the town of charged in aid, and not in exoneration of the person
Frankfort. There was at the station a resident agent alty. The leading case is the I)uke of Chandos v. Tak
who had full knowledge of the injury to Coon, and of bot, 2 P. Wm. 601, 613, and notes. When the personal
appellee's employment. This agent was in telegrapbio estate is so applied, it is governed by the rules as to
conimunication with the principal officers of the comlegacies charged exclusively on personalty, and when
pany, but did not communicate with them. The trial the real estate must be used the case will be subject to
court held the appellant liable for the reasonable value the same rules pro tanto, as if the legacies had been
of the servicos rendered by the appellee, and awarded
him $100. exclusively charged on the realty. The following cases are well worthy of perusal by the student, desirous of
In ordinary cases a conductor or other subordinate gaining a comprehensive view of the American doc
agent has no authority to employ surgical assistance trine of the law of charitable uses: Beekman v. Bon
for a servant of the corporation who receives an insor, 23 N. Y. 298; Bascom V. Albertson, 34 id. 581;
jury or becomes ill. We do not doubt that the genHolmes v. Aleud, 52 id. 343; Wetmore v. Parker, id. 459 ;
eral rule is that a conductor has no authority to Vidal v. Girad's Exrs., 2 Ilow. 127; Fontain v.
make contracts with surgeons, and if this principle Ravenel, 17 id. 392. The dissenting opinion of Daniel,
governs all cases the discussion is at an end; but we J., in this latter case, is well worthy of attention. We
do not think it does rule every case, for there may be consider it contains the real ground for the decision.
cases so strongly marked as to constitute a class in With the above cases compare the English caso of In
themselves, and one governed by a different rule. corporated Soc. v. Richards, 1 Drury & W. 258, 336,
Tho authority of an agent is to be determined from whero Lord Sugden hold that equity in England bad
the facts of the particular case. Facts may exist au inherent jurisdiction in cases of charity, independ
which will greatly broaden or greatly lessen an agent's ently of and anterior to 43 Eliz.
authority. A conductor's authority in the presence of main policy of New York State is contained in each
a superior agent may dwindle into insignificance; charter creating a charitable corporation. Though the
while in the absence of a superior it may become amount of property it may take is restricted, its
broad and comprehensive. An emergency may arise ownership is absolute. Wetmore v. Parker, ut sup.
which will require the corporation to act instantly, The investigation of the development of equity jur
and if the conductor is the only agent present, and the isdiction as the occasions for its exercise hare en
emergency is urgent, he must act for the oorporation, larged its scope, illustrates more completely than any
and if he acts at all, his acts are of just as much force other department of legal study, the intimate connec
as that'of the highest officer of the corporation. In'this tion which exists between the philosophy of law and the
instance the conductor was the highest officer on the philosophy of history. We thus see developing in the
ground; he was the sole representative of the corpora. adjudications of national law, the historical growth of
tion; he it was upon whom dovolved the duty of repthe national conscionce under the influence of an ever
resenting the corporation in matters connected within increasing complexity of the phenomena of the social
the general line of his duty in the sudden emergency organism.
which arose out of the injury to the fellow servantim. AUGUSTUS A. LEVEY.
mediately under his control; either he, as the superior agent of the company, must in such cases be its
representative, or it has none. There are cases where MASTER AND SERVANT--INJURED BRAKEMAN the conductor is the only representative of the corpo- CONDUCTOR EMPLOYING SURGEON.
ration that in the emergency it can possibly have.
There are cases where the train is distant from the SUPREME COURT OF INDIANA, NOV. 25, 1884. supervision of superior officers where the conductor
must act, and act for the company, and where for the TERRE HAUTE, ETC., R. Co. v. MCMURRAY.*
time, and under the exigencies of the occasion, he is A brakeman on defendant's road had his foot crushed in such
its sole representative, and if he be its only represena manner as to call for the immediate attention of a sur
tative, he must, for the time and the exigency, be its *To appear iu 98 Ind. Reports, 358.
Simple examples will prove this to be true. Suppose, owes the duty, and surely, where the question comes for illustration, that a train is brought to a halt by the between the employer and a stranger, tho just rule breaking of a bolt, and that year by is a mechanic who must be that it rests upon the former. can repair the broken bolt and enable the train to pro. Authorities upon the question we are discussing are ceed on its way, may not the conductor employ the far from abundant. In the case of Murquette, etc., R. mechanic? Again, suppose a bridge is discovered to Co. v. Taft, 28 Mich. 289, a laborer in the service of the be unsafe, and tbat there are timbers at a neighboring company was struck and injured by one of its trains, mill which will make it safe, may not the conductor, and the yardmaster and the superintendent employed in behalf of his principal, employ men to haul the tim a surgeon, and the court divided on the question of the ber to the bridge? Once more, suppose the engineer company's liability, Graves and Campbell, JJ., deny. of a locomotive to be disabled, and that it is necessary ing its liability, and ('ooley, J., and Christiancy, ('.J.. at once to move the train to avoid danger, and there affirming that it was liable to the surgeon. One opinis near by a competent engineer, may not the conduc ion was written by Graves, J., and proceeds on the tor employ him to take the train out of danger? In broad ground that no officer of the company could bind these exam ples we mean to include, as a silent factor, it to pay for surgical services rendered an employee. the fact that there is an emergency, allowing no time The case is however distinguishable from the present, for communicating with superior officers, and requir: even upon the theory adopted in the opinion of Judge ing immediate action. If it be true that there are Graves, for in this case there was an immediate necescases of pressing emergency where the conductor is on sity for surgical aid, while in the one cited there is not the special occasion the highest representative of the shown to have been any such necessity. Judge Cooley's company, then it must be true that he may do, in the opinion is a model of judicial reasoning, and forcibly emergency, what the chief officer, if present, might do. maintains the duty of railway companies to provide If the conductor is the only agent who can represent surgical aid for its servants in cases of accidents incithe company, then it is inconceivable that he should, dent to their employment. In one place he says: “We for the purposes of the emergency, and during its ex think it their duty to have some officer or agent at all istence, be other than the highest officer. The posi times competent to exercise a discretionary authority tion arises with the emergency, and ends with it. The in such cases, and that on grounds of public policy authority incident to the position is such, and such they should not be suffered to do otherwise.” At anonly, as the emergency imperatively creates.
other place he says: • We shall not stop to prove that Assuming, as we may justly do, that there are occa there is a strong moral obligation resting upon any sions when the exigency is so great, and the necessity one engaged in a dangerous business, to do what may so pressing, that the conductor stands temporarily as be immediately necessary to save life or prevent an inthe representative of the company, with authority ade jury becoming irreparable, when an accident happens quate to the urgent and immediate demands of the to a person in his employ. We shall assume this to be occasion, we inquire what is such an emergency as will too obvious to require argument.'' Another extract clothe him with this authority and put him in the posi from this opinion, strongly applicable, is this: “There tion designated.
can be no doubt that it is within the scope of sonieSuppose that a locomotive is overturned upon its en body's employment for a railway company to cause a giveer, and he is in immediate danger of great bodily beast which is injured in carriage or run over at a harm, would it not be competent for the conductor to crossing to be picked up, and have the attention proper hire a derrick, or a lifting apparatus, if one were near and suitable to its case; and if no one is authorized to at hand, to lift the locomotive from the body of the do as much for the faithful servant of the company engineer? Surely some one owes a duty to a man im who is in like manner injured, but all persons in its perilled as au engineer would be in the case supposed, service are impliedly forbidden to incur on its behalf to release him from peril, and is there any one upon any expense beyond what may be necessary to remore whom this duty can be so justly put as upon his em him out of the way of their trains and machineryployer? The man must, in the case supposed, have as even to convey him to his house, or to save his life by sistance, and do not the plainest principles of justice binding up a threatening wound-theu if such is the require that the primary duty of yielding assistance law, the courts must not hesitate to apply it, even should devolve upon the employer rather than on though it be inipossible to avoid feeling that it ought strangers ? An employer does not stand to his ser not to be the law, and that no business of this extenvants as a stranger; he owes them a duty. The sive and hazardous nature ought to be suffered to be cases all agree that some duty is owing from the mas carried on with no one for the major part of the time ter to the servant, but no case that we hare been ablo empowered to recognize and perform a duty which, at to find defines the limits of this duty. Granting the least on moral grounds, is so obvious and imperative. existence of this general duty, and no one will deny
But we do not think such is the law." that such a duty does exist, the inquiry is as to its In the case of Vorthern C'entral Ry. ('o. v. Slate, 29 character and extent.
Md. 420, it was held that it is the duty of agents in Suppose the axle of a car to break because of a de. charge of a railroad train to take care of one injured fect, and a brakeman's leg to be mangled by the de by a collision, and to do it with a proper regard for railment consequent upon the breaking of the axle, his safety and the laws of humanity. and that he is in imminent danger of bleeding to death It was held in Walker v. Great Western Ry, Co., L. Quless surgical aid is summoned at once, and suppose R., 2 Exch. 228, that the general manager of the comthe accident to occur at a point where there is no sta pang had authority to employ a surgeon for a serrant tion, and when no officer superior to the conductor is injured in the company's service. Chief Baron Kelly, present, would not the conductor have authority to in the course of the argument, inquired : “ Must a call a surgeon? Is there not a duty to the mangled board be convened before a man who has both his legs man that some one must discharge? And if there be broken can have medical assistance?" See 36 L. J. such a duty, who owes it, the employer or a stranger? (C. L.) 1:23. Humanity and justice unite in affirming that someone In Swuzey v. Union Januf. Co., 42 ('om. 556, the owes him this duty, sinco to assert the contrary is to court held that the business manager of a manufacturaffirm that upon no one rests the duty of calling aid ing corporation had authority to employ surgical aid that may save life.
for a lad who had received an injury in its service. If we concede the existence of this general duty, In 1tlantic, etc., R. ('o. v. Reisner, 18 Kans. 45S, the then the further search is for the one who in justice holding was that the general agent of a railroad com
pany was authorized to employ a surgeon to attend one If it should appear that a man had been denied what of the brakeman injured while in the service of the honesty and fair dealing required of his master, and company. The court said in the course of the opin death should result, it would seem clear on every prinion: “In other words, the geueral agent of the com ciple of justice, that the master would be responsible pany is virtually the conporation itself." This is nec for the servant's death. Of course this duty could not essarily true in cases where the agent is required to act rest upon the master in ordinary cases, but should for the corporation, and is also true where the agent rest upon him in extraordinary cases, where immediwho acts is the highest agent of the corporation pres ate medical assistance is imperatively demanded. ent, although he may not be the general agent of the The case of Tucker v. St. Louis, etc., R. Co., 54 Mo. corporation. A corporation can act, and can be present 177, does deciče that a station agent has no authority only by its agent, and when it must act and must be to employ a surgeon, but no element of pressivg necespresent at a particular time and place, tben it is pres- sity entered into the case. There is no authority cited ent, and does act, through the highest agent who is on in support of the opinion, nor is there any reasoning, the ground. If the agent represents the corporation All that is said is: “It is only shown that they" (the by authority, then so far as he represents it in the par station agent and the conductor) “were agents of the ticular matter, he is in law the corporation, for through defendant in conducting it railroad business, which of him it is present and acting. If then the conductor is itself would certainly give them no authority to emthe highest agent on the ground, and the corporation ploy physicians, for the defendant, to attend to and must and does act, his act is just as much that of the treat persons accidentally injured on the roads.” It corporation in the particular instance, and circum. may be that ihis statement is true in ordinary cases, scribed by the exigencies of the special occasion, as but when we add the element of immediate and pressthough he were much higher in authority.
ing necessity, a new and potent factor is introduced The ruling in Atchison, etc., R. Co. v. Reecher', 24 into the case. Kans. 228, is that the general superintendent of a rail A brief opinion was rendered in Brown v. Missouri, road company has authority to employ a surgeon to etc., R. Co., 67 Mo. 122, declaring that the superintendattend a man injured while in its service.
ent of the company could not bind the company for The cases of Toledo, etc., R. Co. v. Rodrigues, 47 Ill. a small bill of drugs furnished a womau who had 188; Toledo, ete., R. Co. v. Prince, 50 id. 26; Indian been hurt by the locomotive or cars of the defendant." apolis, etc., R. Co. v. Morris, 67 id. 295; Cairo, etc., R. It may be said of the last-cited case that it presented Co. v. Mahoney, 82 id. 73, cited and relied on by the no feature of emergency requiring prompt action, and appellant, all recognize the doctrine that the superin- for aught that appears in the meager opinion of a very tendent or general agent has authority to employ a few lines, there may have been no necessity for action. surgeon to treat a servant who has been injured. If But it is further to be said of it, that if it is to be we are right in our conclusion that an emergency may deemed as going to the extent of denying the right of arise which will constitute a conductor, for the time one of the principal officers to contract for medicine in and the emergency, the chief officer of the corporation case of urgency, it finds no support from any adjudged present, them these cases are strongly in support of our case. position that he may in cases of urgent necessity bind The case of Mayberry v. Chicago, etc., R. Co., 75 Mo. the corporation by contracting with a surgeon. For 492, is not in point, for there a physician employed to once it is conceded that the officer having a right to render medical aid, and employed for no other purrepresent the company is the company, it evidently pose,'undertook to contract for boarding for an injured follows that his contract is hat of the corporation. These cases do deny however in general terms the au The learned counsel for appellant says in his arguthority of a station agent or conductor to employ a ment: “In several of these case the court takes occasurgeon, but they affirm that if the superintendent sion to say that humanity, if not strict justice, requires has notice of the services rendered by the surgeon, a railroad company to care for an employee who is inand does not disavow the agent's acts, the company jured without fault on his part in endeavoring to prowill be bound. It is to be noted that in all of these mote the interests of the company. Whilst this may cases the company was held liable on the ground of be true, I think humanity and strict justice too would ratification by the superintendent, and there was at least permit the company to adopt the proper means really no decision of any other question than that a for exercising the required oare and of determining the failuro of the superintendent to disavow the contract cases wherein it ought to be exercised.” of the conductor or station agent rendered the com It seems to us that while the concession of the counpany liable. There was no discussion of the authority sel is required principle and authority, his answer of a conductor in cases of immediate and urgent neces is far from satisfactory. Can a man be permitted to sity. The reasoning of the court in these cases strongly die while waiting for the company to determine when indicates that the act of the superior officer, whoever and how it shall do wbat humanity and strict justice he may be, on the occasion and under the emergency, require? Must there not be some representative of would be deemed the act of the corporation which he the company present in cases of dire necessity to act assumes to represent. In the last of these cases it is for it? The position of counsel will meet ordinary said: “While a railroad company is under no legal cases, but it falls short of meeting cases where there is obligation to furnish an employee who may receive in no time for deliberation, and where humanity and juries while in the service of the company, with medi justice demand instant action. From whatever point cal attendance, yet where a day laborer has by an un of view we look at the subject we shall find that the foreseen accident been rendered helpless when labor highest principles of justice demand that a subordiing to advance the prosperity and the success of the nate agent may in the company's behalf call surgical company, honesty and fair dealing would soem to de aid when the emergencies of the occasion demand it, mand that it should furnish medical assistanco.” If and when he is the sole agent of the company in whose it be conceded that honesty and fair dealing require power it is to summon assistance to the injured and that medical assistance should be furnished, then the suffering servant. Humanity and justice are for the law requires it, for the law always demands honesty most part inseparable, for all law is for the ultimate and fair dealing. It would be a cruel reproach to the benefit of man. The highest purpose the law can aclaw, and one not merited, to declare that it denied to complish is the good of society any its members, and an injured man wbat honesty and fair dealing re it is geldom indeed that the law refuses what humanity quire.
suggests. Before this broad principle bare pecuniary
considerations become as things of little weight. mediate necessity for surgical treatment. A conThere may be cases in which a denial of the right of ductor cannot be regarded as having authority to emthe conductor to summon medical assistance to one of ploy a surgeon when the train is not on the road under his train meu would result in suffering and death, his control, or where there is one higher in authority while on the other hand, the assertion of the right can on the ground, or where there is no immediate necesat most never do more than entail upon the corpora sity for the services of a surgeou. tion pecuniary loss. It may not do even that, for The rule which denies a recovery where there is muprompt medical assistance may, in mauy cases, lessen tual negligence applies only between the immediate the loss to the company by preventing loss of life or parties. The courts do not extend the rule to cases limb.
where the defendant's negligence and that of a third The authority of a conductor of a train in its general person concur in producing the injury. Thus if two 800pe is kuowu to all intelligent men, and the court trains come into collision and the managers of both that professes itself ignorant of this matter of general are negligent, an action may nevertheless be mainnotoriety avows a lack of kuowledge that no citizen tained by a passenger. Pillsburgh, etc., R. Co. v. who has the slightest acquaintance with railroad affairs Spencer, 98 Iud. 186. So if a man is riding with would be willing to confess. It is true that the exact another and is injured by a collision occurring limits of his authority cannot be inferred from evidence through the concurrent negligence of the driver of the that he is the conductor in charge of the train, but the vehicle and the servants of a railroad train engaged in general duty and authority may be. This general au runuing it, he may recover, notwithstandivg the couthority gives him control of the train men and of the tributory negligence of the driver of the vehicle in train, and devolves upon him the duty of using rea which he was riding. Town of Albion v. Hetrick, 90 sonable care and diligence for the safety of his subor Ind. 545; S. C., 46 Am. Rep. 230; Robinson v. N. Y. ('., dinates. The authority of the couductor may be in etc., R. Co., 66 N. Y. 11; S. C., 23 Am. Rep.1; Wabash, ferred, as held in Columbus, etc., Ry. Co. v. Powell, etc., Ry. Co. v. Shacklet, 105 Ill. 364; 8. C., 44 Am. 40 Ind. 37, from his acting as such in the control of the Rep. 791; Masterson v. N. Y. C., etc., R. Co., 84 N. Y. train, but this inference only embraces the ordinary 247; S. C., 38 Am. Rep. 510; Cuddy v. Horn, 46 Mich. duties of such an agent. Many cases declare that the 596; S. C., 41 Am. Rep. 178; Bennett v. New Jersey, etc., conductor, in the management of the train and mat Co., 36 N. J. 225; S. C., 13 Am. Rep. 435. tors connected with it, represents the company. It is The doctrine of contributors negligence is by some true that the agency is a subordinate one confined to authorities based on the principle that a man must tbe subject-matter of the safety of the train and its not cast himself into danger, and by others upon the crew, and the due management of matters connected principle that one who is himself in fault cannot inwith it, but althougb the conductor is a subordinate roke assistance from the courts against another who agent he yet bas broad authority over the special sub shares the fault with him. Butterfield v. Forrester, 11 jeot committed to this charge. It was said in Jeffer- | East, 60; 1 Thomp. Neg. 485. Other authorities put sonville Ass'n v. Fisher, ñ Ind. 699, that “it is not the the doctrine on the ground that the interests of the namo given to the agent, but the acts which he is au whole community require that erery one should take thorized to do, which must determine whether they such care of himself as can reasonably be expected of are valid or not, when done.” In another case it was him. Shearman & Redf. Neg., $42. It is obvious that said: "The authority of an agent being limited to a whatever be deemed the true basis of the doctrine, it particular business does not make it special; it may be cannot apply where the case goes beyond the plaintiff as general in regard to that, as though its range were himself, or what in law is the same thing, bis agent or unlimited." Cruzan v. Smith, 41 Ind. 288. This sub servant. It is therefore plain that where a surgeon ject was discussed in Toledo, etc., Ry. Co. v. Owen, sues for professional services rendered at the request 43 id. 405, where it was said: “A general agent is one of the agent of a railroad corporation, no question of authorized to transact all his principal's business, or contributory negligence is involved. This is mani. all of his principal's business of somo particular kind. festly the practical, just, and reasonable rule. It canA special agent is one who is authorized to do one or not be expected that a surgeon summoned to attend a more special things, and is usually confined to one or case of pressing need shall be required to stop and inmore particular transactions, such as the sale of a restigate the causes of the accident, and thus take tract of land, to settle and adjust a certain account, upon himself the functions of judge and jury. It is or the like. That the authority of an agent is limited but just that he should be deemed entitled to rely on to a particular kind of business does not make him a the statement of the corporate ageut. Where a prinspecial agent. Few if any agents of a railroad com cipal puts it in his agent's power to exercise apparent pany do, or can attend to every kind of business of the authority, the man who in good faith acts upon the company, but to each one are assigned duties of a par statements of the agent should be protected. Cruzan ticular kind, or relatiug to a particular branch or de V. Smith, 41 Iud. 288. The Supreme Court of Kansas, partment of the business.” Wharton says: “A gen in a case not unlike the present, said: “The defend. eral agent is one who is authorized by his principal to ant in error was not compelled to institute inquiry as take charge of his business in a particular line.” to the moral or legal liability of the railroad company Whart. Agency, 117. It results from these familiar to take care of the disabled employee before receiving principles, that the conductor of a train, fo far as con him into his hotel, after the general agent of the comcerus the direct and immediate management of the pany had agreed that the company would pay for the train when it is out on the road, is in the absence of board and service.” Atlantic, etc., R. Co. v. Reisner, 18 some superior officer, the general agent of the com Kans. 458. pany; but even general agents do not have universal The employment of a surgeon is not an acknowledgpowers, and the authority of such agents is to be de ment of a liability to the injured servant, nor can any duced from the facts surrounding the particular trans admission be tortured from such an act. Evidence of action. 2 Greenl. Ev., SS 6+-61a. In some instances such an employment would be incompetent in an acthen the conductor is the general agent of the com tion by the serrant, and no adniission can therefore pany, and we think it clear upon principle aud author be implied. The employment of a surgeon is nothing ity, that he is such an agent for the purpose of employ more than an act of humanity and justice demanded ing surgical assistance where a brakeman of his train of a railroad company in behalf of a servant injured is injured while the train is out on the road, and where in its service. there is no superior officer present, and there is an im
ZOLLARS, C. J., dissents on the ground that it is NEW YORK COURT OF APPEALS ABSTRACT. not sufficiently shown that the conductor had authority to bind the company by his contract with ap MORTGAGE - UNCERTAINTY IN DESCRIPTION-EVIpellee.
DENCE ALIUNDE.- A deed should never be held void ON PETITION FOR A REHEARING.
when the words may be applied to any intent to make ELLIOTT, J. Counsel for the appellant misconceive it good, and to that end they are to be taken most the drift of the reasoning in our former opinion, as strongly against the grantor, for he should not be alwell as the conclusion announced. We did not de- lowed to say that a description framed by himself was cide that a corporation was responsible generally for so indefinite that upon au enforcement of the mortgage medical or surgical attention given to a sick or no title to the property could be acquired. 4 Com. wounded servant; on the coutrary, we were careful to Dig. tit. Fait; 4 Cruise, 203, § 13; Jackson v. Gardner, limit our decision to surgical services rendered upon 8 Johus. 394. It is enough therefore if by any particulars an urgent exigency, where immediate attention was in the description the thing granted can be sufficiently demanded to save life or prevent great injury. We held ascertained to enable the court to say that the words that the liability arose with the emergency, and with chosen by the parties were intended to relate to it. it expired.
And for that purpose we may go beyond the face of We did hold that where the conductor was the high- the deed if it refers to some subject-matter in respect est representative of the corporation on the ground, to which wo can locate and apply the description. and there was an emergency requiring immediate ac Coleman v. Manbattan Beach Imp. Co., 91 N. Y. 229. tion, he was authorized to employ a surgeon to give In the case at bar the mortgage conveys
“a certain such attention as the exigency of the occasion made other piece or parcel of land lying and being situated imperiously necessary; but we did not hold that the in the county of Tompkins, being part of lot No. 86 in conductor had a general authority to employ a sur Lansing aforesaid,
containing 133 acres of geon whero there was no emergency, or where there land, the same, more or less. The intention of this was a superior agent on the ground. We think our last-mentioned piece of land is to mortgage 46 acres of decision was well sustained by the authorities there land on the south side of it. next to Mr. Norton's, to cited, and that it is further supported by the reason secure a part of the consideration. We think there ing in Chicago, etc., Ry. Co. v. Ross, 31 Alb. L. J.8; can be no doubt as to what property was intended. and Pennsylvania Co. v. Gallagher, 40 Ohio St. 637; S.
* There was no other land of the mortgagor C., 48 Am. Rep. 689.
on which the conveyance could operate. He had no If the conductor, who is the superior agent of the other “next to Norton's.” In such a case the maxim company on the ground, cannot represent the princi- , ut res magis ruleut quam pereat applies. It is not easy pal so far as to employ a surgeon to render profes- to find two cases alike, but the principle upon which sional services to an injured servant, and prevent the many have been decided applies here, and I know of loss of life or great bodily harm, then it must be said, no exception to the general rule which requires the as it was said by the Supreme Court of the United court to make a deed effective if from the descripStates in Chicago, etc., Ry. Co. v. Ross, suprai, that tion given the premises sought to be conveyed can be “If such conductor does not represent the company, located with reasonable certainty. Here the descripthen the train is operated without any representative tion is in some respects inartificial and imperfect, but of its owner.
the intention of the parties is more apparent tban in The decision in Louisville, etc., R. Co. v. Acl'ey, numerous cases cited by the learned counsel for the 98 Ind. 391, is not in contlict with our conclusion in the appellant, where the courts have given effect to instrupresent case. There the road-master was not the su ments objected to for like reasons. To hold otherwise perior agent within reach, and there was no emergency we must exclude the rule which requires even the demanding immediate action. These are features proper and exact signification of words and sentences which very essentially distinguish the two cases. We to be disregarded when a close adherence to it would held in this case a doctrine held in the case cited, prevent the intention of the parties from taking effect namely, that the conductor, or other subordinate (French v. ('arhart, 1 N. Y. 102), and that other rule agent, has no general authority to employ a surgeon which requires us to select among conflicting descripfor a sick or wounded servant of the company ; but tions, one which is most certain, and to reject inconwe also held that where the conductor, in control of sistent or mistaken particulars, when by those which the company's train and its brakemen, is the highest remain the thing intended to be granted can be asceragent on the ground, he does possess an authority | tained. Jackson V. Marsh, 6 (ow. 281; Same v. commensurato with an existing and pressing emer Loomis, 18 Johns. 81; Loomis v. McNaughton, 19 id. gency. It seems clear to us, upon principles of fair 448; Fish v. Hubbard, 21 Wend. 652. So whether justice and ordinary humanity, that some one must these principles are applied, or regard had only to the possess authority to meet an urgent exigency by em description which places the mortgaged premises ploying surgical aid to save from death or great and next to Norton's," we think the learned county judge permanent injury a servant under his control. Astho did not err in giving effect to the mortgage, or in holdreasoning in the Mcl’ey case clearly shows, there is ing that the mortgaged premises were well located by still another material difference between the two means of the description contained in it. People v. cases, and that is this: There the road-master ap Sterens. Opinion bg Danforth, J. peared to only have authority over the repairs of the [Decided Nor. 25, 1884.) road; while here it appears that the conductor had charge of the injured servant, and was the highest
INSURANCE-MARINE-WARRANTY OF SEAWORTHIofficer of the corporatiou capable of acting as its rep
NESS-CONDITION PRECEDENT TO RECOVERY.-In every resentative in tbe emergency which had so suddenly
case of marine insurance there is an implied warranty arisen.
of seaworthiness on the part of the insured, and if the So far as concerns the general principle involved
vessel is not seaworthy the policy does not attach. 1 there is no conflict, but rather harmony, for the mic
Arn. Ins. 652, 667; 2 Pars. ('ont. (5th od.) 375; Allison l’ey case clearly recognizes the doctrine that the v. Corn Exchange ('o., 57 N. Y. 87; Draper v. Comhighest agent capable of acting for the company may
mercial Ins. ('0., 21 id. 378; Howard v. Orient M. Ins. employ surgical aid in the propor case.
Co., 2 Robt. 539. This warranty of seaworthiness is a
Petition overruled. condition precedent, the performance of which must, [See 33 Eng. Rep. 187, 208.]
to eutitle the plaiutiff to recover, be alleged and proved