McDonald v. New York Central R. Co. , 227 Mich. 579 ( 1924 )

Mr. Justice SHARPE has reached the conclusion that the judgment in this case should be reversed. I think it should be affirmed.

Margaret McDonald was a trained nurse in Butter-worth hospital, in the city of Grand Rapids. She had known Dr. Webb for several years. She knew he was employed as surgeon for the defendant railway. She was called upon by the director of nurses to take charge of a railroad accident case for Dr. Webb. She attended the case for six weeks, believing defendant railway would pay her. When she had served six weeks she asked for her pay, and then learned for the first time that Dr. Webb had no express authority to employ her, except forfirst aid, which he construed to be 24 hours.

This suit was begun to enforce payment. Dr. Webb admitted on the trial that he employed plaintiff, and that he had authority to employ a nurse for first aid, if necessary, but for no longer period. He stated that a nurse was necessary in Mr. Peterson's case. He further stated that he advised plaintiff of the limitation of his authority, but plaintiff denied this. The trial court left this question of veracity to the jury and also the question of Dr. Webb's apparent authority to employ plaintiff for the six weeks' period.

The testimony of Dr. Webb authorized the jury to find that he had express authority to employ plaintiff for 24 hours. If then Dr. Webb had authority to employ her, and did employ her, there was a valid contract, and that contract would continue in force for six weeks unless Dr. Webb, or someone, informed her of the limitation of the doctor's authority. He testified that he did so inform her. She denied that he did. This then was clearly a question of veracity for the consideration of the jury.

If the contract were a valid one for a day, how was Margaret to know at the end of the 24-hour period that he had no authority to employ her for a longer time? The limitation on the doctor's authority consisted of secret instructions, and she had no way of knowing what they were. The doctor had charge of the case, ordered the injured man taken to the hospital, was treating him professionally, and all the attending circumstances indicated that the doctor had the authority which he exercised. After plaintiff was legally hired and rendered services for six weeks of 20 hours a day, to permit defendant to escape under a claim of this character would be to countenance a fraud upon her.

The principal is bound to third persons who have relied thereon in good faith and in ignorance of any limitation or restrictions by the apparent authority he has given to the agent, and not by the actual or express authority where that differs from the apparent; and this, too, whether the agency be a general or a special one. Mechem on Agency, § 283.

This statement of the rule was approved in the case ofAntrim Iron Co. v. Anderson, 140 Mich. 702 (112 Am. St. Rep. 434), where the question of apparent authority was involved.

In Austrian Co. v. Springer, 94 Mich. 343 (34 Am. St. Rep. 350), in discussing the question of apparent authority, it was said:

"The question is not, what was the authority actually given, but what was the plaintiff, in dealing with the agent, justified in believing the authority to be (citing authorities)? Whatever attributes properly belong to the character bestowed will be presumed to exist, and they cannot be cut off by private instructions of which those who deal with the agent are ignorant. Among those attributes is the power to do all that is usual and necessary to accomplish the object for which the agency was created. Mechem on Agency, § 347; BannerTobacco Co. v. Jenison, 48 Mich. 459."

"Indeed, whenever a principal has placed an agent in such a situation that a person of ordinary prudence, conversant with business usages, and the nature of the particular business, is justified in assuming that such agent is authorized to perform in behalf of his principal the particular act, and such particular act has been performed, the principal is estopped from denying the agent's authority to perform it. And the principal will not be permitted to prove that the agent's authority was in fact less extensive than that with which he apparently was clothed." 21 R.C.L. p. 856.

It was said in Howell, Jewett Co. v. Graff, Murray Co.,25 Neb. 130 (41 N.W. 142):

"A special agent who acts within his apparent power will bind his principal by his contracts, even if he has received private instructions which limit his special authority; but if he exceed his apparent power his principal will not be bound."

And it was said in Sails v. Miller, 98 Mo. 478 (11 S.W. 970), that secret limitations upon the apparent general authority of an agent will not bind one who deals with an agent in the general line of his authority and who knows nothing of such limitation.

An interesting case and one bearing upon the question involved here is Bigham v. Railway Co., 79 Iowa, 534 (44 N.W. 805). This case involves the authority of a doctor to employ a nurse, and whether he did employ, and fully sustains the contentions made herein in behalf of plaintiff.

Inasmuch as the jury found that Dr. Webb had the apparent authority to employ, and did employ plaintiff, and did not disclose to her the limitation of his authority, I think the judgment in plaintiff's behalf should be affirmed.

McDONALD, MOORE, and WIEST, JJ., concurred with BIRD, J.