Roff Oil Cotton Co. v. King , 46 Okla. 31 ( 1915 )

The first assignment was of the refusal of the court to transfer the trial from Ada to Roff, in Pontotoc county. This motion is based on the provisions of section 2, c. 32, Session Laws 1910-11, which provides:

"The courts herein provided for shall have concurrent jurisdiction over the entire county on matters coming before the county court of Pontotoc county, and upon application presented after reasonable notice, any action pending in said court at either place for holding county court in said county shall be transferred to or remain in the county court held nearest the residence of the defendant, or one of the defendants, in said action; provided, that in all criminal cases where the defendant is in jail, he shall be tried at the county seat."

Plaintiff in error cites no authority to support this contention.

Plaintiff in error, who moved for this transfer, is a foreign corporation, and its residence is in Texas, the state which created it. It is doing business, however, in Oklahoma, having an office in Roff. The statute provides for transfer to the county court held nearest the residence of the defendant. To say that this statute means nearest the place of business of the defendant would be interpolating words into the statute which we are not authorized to do. The clear object of the statute was that cause should be tried in Pontotoc county in the county court held nearest the residence of the defendant. If, for instance, a defendant resides in Ada, and is doing business in Roff, he could not claim a transfer to Roff because he did business there. The residence of a corporation, it has been frequently decided, is where its chief office is. SeeBoard of Councilmen v. Stone (Ky.) 58 S.W. 373, Jossey v. G. A. Ry. Co., 102 Ga. 706, 28 S.E. 273, and Grundy County v.Tennessee Coal, etc., Co. 94 Tenn. 295, 29 S.W. 116, where the Supreme Court of Tennessee held that the residence of a corporation is the place where the governing power of the corporation is exercised, and where those meet in council who have the right to control its affairs and prescribe what policy the corporation shall pursue, and not where the labor is performed in exercising the requirements of the corporation in transacting its business. See, also, Galveston, etc., R. Co. v. Gonzales, 151 U.S. 496, 14 Sup. Ct. 401, 38 L.Ed. 248.

To give the construction contended for by the plaintiff in error would be to read words into this statute which are not there, and we would have to say that the statute meant not only the "residence," but the "nearest place of business," of the defendant. This assignment of error is therefore overruled.

The second, fifth, sixth, and eighth assignments of error may be considered together, as they all raise the same question; that is, whether the plaintiff has introduced sufficient evidence to go to the jury in this case. The witness Rogers was the employee of the plaintiff in error at Roff and his duties were to purchase cotton, make repairs, and to apply for supplies or other things needed at the Roff office. This circumstance by itself did not make him such an agent as would authorize him to employ a physician to attend to an injured employee. We think the general rule is well settled that an employer is not ordinarily bound to provide medical attention for an injured employee, and hence such an agent as Rogers has no implied authority to contract in his name for such attention. 31 Cyc. 1399. But a different question is presented here. Dr. Vaden, it appears from the evidence, rendered first aid in the absence of Dr. King, who took charge of the case immediately upon his return, at the request of Rogers, who, within three or four days, notified the plaintiff in error that Dr. King had charge of the case. It is true that Rogers testifies that he did not tell the plaintiff in error that contracted in their name for Dr. King's compensation, but the plaintiff in error had notice that Dr. King was attending their injured employee. In Sevier v. Birmingham, etc., R. Co.,92 Ala. 258, 9 South, 405, the facts were that an employee of the railroad was injured while in the discharge of his duty, and a physician was employed by the conductor to attend to him. There was no evidence in that case of the ratification by the proper authorities of the railroad, or that the railroad was informed of the fact that the physician was rendering services to its employee, but at page 262 of 92 Ala., at page 406 of 9 South., the court uses this language:

"Unquestionably, the general superintendent may ratify the conductor's unauthorized employment, and, upon notice of the injury and the employment of the physician, the general superintendent, in order to avoid responsibility, should dissent, and notify plaintiff that the company would not be responsible. But this duty does not arise, and there can be no ratification, unless the superintendent is informed of the facts and circumstances of the employment of plaintiff. There is no evidence that he had any knowledge or notice thereof until after the services were rendered. (44 Am. Eng. R.R. Cas. 464.)"

In Pacific Railroad Co. v. Thomas, 19 Kan. 256, an employee of the railroad company was injured, and a physician was employed by a master mechanic to attend him. The physician performed the services, looking to the railroad company for his pay, and made out a bill against the railroad company and inclosed it in a letter, which stated his employment by the master mechanic and asked that the company pay the bill. No attention was paid by the general superintendent to this letter. It was held by the court that these were facts sufficient to uphold the finding by the jury that the division superintendent ratified the employment of the physician by the master mechanic. The facts of this case are somewhat similar to the case at bar. In the Thomas Case the physician forwarded his bill to the superintendent, to which the superintendent paid no attention, and the court held that this was sufficient evidence of the ratification to go to the jury. In the case at bar, before the services were completed, although a considerable time had elapsed, the defendant in error sent his bill to the company, and prior to this time sent the bill to their agent at Roff, who testified that he does not remember whether he ever forwarded the bill or not. But, at any rate, the evidence is clear that within a day or two after the services began the plaintiff in error was notified that the defendant in error was treating the case, but remained silent.

This case is distinguishable from the Chickasha Cotton OilCo. v. Lamb, 28 Okla. 275, 114 P. 333, because in that case there was no evidence whatever that the Chickasha Cotton Oil Company had any knowledge that the physician was performing the services prior to the time of their completion. The only evidence in that case of agency (see 28 Okla. 289,114 P. 333) was that the person calling the physician at the time of the accident stated that he had been sent by the president or manager of the defendant to employ him. There was no evidence that the superintending officer of the corporation knew that the defendant in error in that case had been employed or that the corporation kept silent after knowing such fact. The fact that Rogers was in charge of the office at Roff, that he communicated the fact that the defendant in error was the attending physician of the injured employee, that the company did pay for medicines for him, was some evidence to establish the agency, and, when there is evidence whether or not there is an agency it is a question for the jury. See Port Huron, etc.,Co. v. Ball, 30 Okla. 11, 118 P. 393; Mullen v. Thaxton,24 Okla. 643, 104 P. 359, Allen v. Kenyon, 30 Okla. 536,119 P. 960; Yukon Mill Grain Co. v. Imperial Roller Mills Co.,34 Okla. 817, 127 P. 422; Swazey v. Mfg. Co., 42 Conn. 556. These assignments are therefore not well taken.

The third assignment of error is that the court erred in admitting incompetent and immaterial testimony in allowing the witness Rogers to testify as to the scope of his authority as agent, and in the evidence of Mr. Holman as to certain bills for medicines supplied to Parks and paid for by the plaintiff in error. While it is true that the fact of agency cannot be proved by the hearsay declarations of the agent, yet the agent himself, while on the stand, can testify as to his agency and as to the scope of his employment. The payment of the drug bills was some evidence to be considered by the jury as to the liability which the plaintiff in error had assumed in regard to the injured man. The agent, Rogers, who employed the defendant in error, also bought the medicine for him, and this fact was some evidence to go to the jury in establishing the agency.

The fourth assignment of error has been waived, and the ninth assignment of error, in regard to the court's charge to the jury, has not been briefed by the plaintiff in error, and is therefore not considered.

We therefore recommend that the judgment below be affirmed.

By the Court: It is so ordered.