pany was authorized to employ a surgeon to attend one of the brakemen injured while in the service of the company. The court said in the course of the opinion: "In other words, the general agent of the company is virtually the conporation itself." This is necessarily true in cases where the agent is required to act for the corporation, and is also true where the agent who acts is the highest agent of the corporation present, although he may not be the general agent of the corporation. A corporation can act,and can be present only by its agent, and when it must act and must be present at a particular time and place, then it is present, and does act, through the highest agent who is on the ground. If the agent represents the corporation by authority, then so far as he represents it in the particular matter, he is in law the corporation, for through him it is present and acting. If then the conductor is the highest agent on the ground, and the corporation must and does act, his act is just as much that of the corporation in the particular instance, and circum. scribed by the exigencies of the special occasion, as though he were much higher in authority.

The ruling in Atchison, etc., R. Co. v. Reecher, 24 Kans. 228, is that the general superintendent of a railroad company has authority to employ a surgeon to attend a man injured while in its service.

The cases of Toledo, etc., R. Co. v. Rodrigues, 47 Ill. 188; Toledo, ete., R. Co. v. Prince, 50 id. 26; Indianapolis, etc., R. Co. v. Morris, 67 id. 295; Cairo, etc., R. Co. v. Mahoney, 82 id. 73, cited and relied on by the appellant, all recognize the doctrine that the superintendent or general agent has authority to employ a surgeon to treat a servant who has been injured. If we are right in our conclusion that an emergency may arise which will constitute a conductor, for the time and the emergency, the chief officer of the corporation present, them these cases are strongly in support of our position that he may in cases of urgent necessity bind the corporation by contracting with a surgeon. For once it is conceded that the officer having a right to represent the company is the company, it evidently follows that his contract is that of the corporation. These cases do deny however in general terms the authority of a station agent or conductor to employ a surgeon, but they affirm that if the superintendent has notice of the services rendered by the surgeon, and does not disavow the agent's acts, the company will be bound. It is to be noted that in all of these cases the company was held liable on the ground of ratification by the superintendent, and there was really no decision of any other question than that a failure of the superintendent to disavow the contract of the conductor or station agent rendered the company liable. There was no discussion of the authority of a conductor in cases of immediate and urgent necessity. The reasoning of the court in these cases strongly indicates that the act of the superior officer, whoever he may be, on the occasion and under the emergency, would be deemed the act of the corporation which he assumes to represent. In the last of these cases it is said: "While a railroad company is under no legal obligation to furnish an employee who may receive injuries while in the service of the company, with medical attendance, yet where a day laborer has by an unforeseen accident been rendered helpless when laboring to advance the prosperity and the success of the company, honesty and fair dealing would seem to demaud that it should furnish medical assistance." If it be conceded that honesty and fair dealing require that medical assistance should be furnished, then the law requires it, for the law always demands honesty and fair dealing. It would be a cruel reproach to the law, and one not merited, to declare that it denied to an injured man what honesty and fair dealing require.

If it should appear that a man had been denied what honesty and fair dealing required of his master, and death should result, it would seem clear on every principle of justice, that the master would be responsible for the servant's death. Of course this duty could not rest upon the master in ordinary cases, but should rest upon him in extraordinary cases, where immediate medical assistance is imperatively demanded.

The case of Tucker v. St. Louis, etc., R. Co., 54 Mo. 177, does decide that a station agent has no authority to employ a surgeon, but no element of pressing necessity entered into the case. There is no authority cited in support of the opinion, nor is there any reasoning, All that is said is: "It is only shown that they" (the station agent and the conductor) "were agents of the defendant in conducting it railroad business, which of itself would certainly give them no authority to employ physicians, for the defendant, to attend to and treat persons accidentally injured on the roads." It may be that this statement is true in ordinary cases, but when we add the element of immediate and pressing necessity, a new and potent factor is introduced into the case.

A brief opinion was rendered in Brown v. Missouri, etc., R. Co., 67 Mo. 122, declaring that the superintendent of the company could not bind the company for "a small bill of drugs furnished a woman who had been hurt by the locomotive or cars of the defendant" It may be said of the last-cited case that it presented no feature of emergency requiring prompt action, and for aught that appears in the meager opinion of a very few lines, there may have been no necessity for action. But it is further to be said of it, that if it is to be deemed as going to the extent of denying the right of one of the principal officers to contract for medicine in case of urgency, it finds no support from any adjudged

case.

The case of Mayberry v. Chicago, etc., R. Co., 75 Mo. 492, is not in point, for there a physician employed to render medical aid, and employed for no other purpose, undertook to contract for boarding for an injured

man.

The learned counsel for appellant says in his argument: "In several of these case the court takes occasion to say that humanity, if not strict justice, requires a railroad company to care for an employee who is injured without fault on his part in endeavoring to promote the interests of the company. Whilst this may be true, I think humanity and strict justice too would at least permit the company to adopt the proper means for exercising the required care and of determining the cases wherein it ought to be exercised."

It seems to us that while the concession of the counsel is required by principle and authority, his answer is far from satisfactory. Can a man be permitted to die while waiting for the company to determine when and how it shall do what humanity and strict justice require? Must there not be some representative of the company present in cases of dire necessity to act for it? The position of counsel will meet ordinary cases, but it falls short of meeting cases where there is no time for deliberation, and where humanity and justice demand instant action. From whatever point of view we look at the subject we shall find that the highest principles of justice demand that a subordinate agent may in the company's behalf call surgical aid when the emergencies of the occasion demand it, and when he is the sole agent of the company in whose power it is to summon assistance to the injured and suffering servant. Humanity and justice are for the most part inseparable, for all law is for the ultimate benefit of man. The highest purpose the law can aocomplish is the good of society any its members, and it is seldom indeed that the law refuses what humanity suggests. Before this broad principle bare pecuniary

considerations become as things of little weight. There may be cases in which a denial of the right of the conductor to summon medical assistance to one of his train men would result in suffering and death, while on the other hand, the assertion of the right can at most never do more than entail upon the corporation pecuniary loss. It may not do even that, for prompt medical assistance may, in many cases, lessen the loss to the company by preventing loss of life or limb.

The authority of a conductor of a train in its general scope is known to all intelligent men, and the court that professes itself ignorant of this matter of general notoriety avows a lack of knowledge that no citizen who has the slightest acquaintance with railroad affairs would be willing to confess. It is true that the exact limits of his authority cannot be inferred from evidence that he is the conductor in charge of the train, but the general duty and authority may be. This general authority gives him control of the train men and of the train, and devolves upon him the duty of using reasonable care and diligence for the safety of his subordinates. The authority of the couductor may be inferred, as held in Columbus, etc., Ry. Co. v. Powell, 40 Ind. 37, from his acting as such in the control of the train, but this inference only embraces the ordinary duties of such an agent. Many cases declare that the conductor, in the management of the train and matters connected with it, represents the company. It is true that the agency is a subordinate one confined to the subject-matter of the safety of the train and its crew, and the due management of matters connected with it, but although the conductor is a subordinate agent he yet has broad authority over the special subject committed to this charge. It was said in Jeffersonville Ass'n v. Fisher, 7 Ind. 699, that "it is not the name given to the agent, but the acts which he is authorized to do, which must determine whether they are valid or not, when done." In another case it was said: "The authority of an agent being limited to a particular business does not make it special; it may be as general in regard to that, as though its range were unlimited." Cruzan v. Smith, 41 Ind. 288. This subject was discussed in Toledo, etc., Ry. Co. v. Owen, 43 id. 405, where it was said: "A general agent is one authorized to transact all his principal's business, or all of his principal's business of some particular kind. A special agent is one who is authorized to do one or more special things, and is usually confined to one or more particular transactions, such as the sale of a tract of land, to settle and adjust a certain account, or the like. That the authority of an agent is limited to a particular kind of business does not make him a special agent. Few if any agents of a railroad company do, or can attend to every kind of business of the company, but to each one are assigned duties of a particular kind, or relating to a particular branch or department of the business." Wharton says: "A general agent is one who is authorized by his principal to take charge of his business in a particular line." Whart. Agency, 117. It results from these familiar principles, that the conductor of a train, fo far as concerns the direct and immediate management of the train when it is out on the road, is in the absence of some superior officer, the general agent of the company; but even general agents do not have universal powers, and the authority of such agents is to be deduced from the facts surrounding the particular transaction. 2 Greenl. Ev., §§ 64-64a. In some instances then the conductor is the general agent of the company, and we think it clear upon principle aud authority, that he is such an agent for the purpose of employing surgical assistance where a brakeman of his train is injured while the train is out on the road, and where there is no superior officer present, and there is an im

mediate necessity for surgical treatment. A conductor cannot be regarded as having authority to employ a surgeon when the train is not on the road under his control, or where there is one higher in authority on the ground, or where there is no immediate necessity for the services of a surgeon.

The rule which denies a recovery where there is mutual negligence applies only between the immediate parties. The courts do not extend the rule to cases where the defendant's negligence and that of a third person concur in producing the injury. Thus if two trains come into collision and the managers of both are negligent, an action may nevertheless be maintained by a passenger. Pittsburgh, etc., R. Co. v. Spencer, 98 Ind. 186. So if a man is riding with another and is injured by a collision occurring through the concurrent negligence of the driver of the vehicle and the servants of a railroad train engaged in running it, he may recover, notwithstanding the contributory negligence of the driver of the vehicle in which he was riding. Town of Albion v. Hetrick, 90 Ind. 545; S. C., 46 Am. Rep. 230; Robinson v. N. Y. C., etc., R. Co., 66 N. Y. 11; S. C., 23 Am. Rep. 1; Wabash, etc., Ry. Co. 7. Shacklet, 105 Ill. 364; S. C., 44 Am. Rep. 791; Masterson v. N. Y. C., etc., R. Co., 84 N. Y. 247; S. C., 38 Am. Rep. 510; Cuddy v. Horn, 46 Mich. 596; S. C., 41 Am. Rep. 178; Bennett v. New Jersey, etc., Co., 36 N. J. 225; S. C., 13 Am. Rep. 435.

The doctrine of contributory negligence is by some authorities based on the principle that a man must not cast himself into danger, and by others upon the principle that one who is himself in fault cannot invoke assistance from the courts against another who shares the fault with him. Butterfield v. Forrester, 11 East, 60; 1 Thomp. Neg. 485. Other authorities put the doctrine on the ground that the interests of the whole community require that every one should take such care of himself as can reasonably be expected of him. Shearman & Redf. Neg., § 42. It is obvious that whatever be deemed the true basis of the doctrine, it cannot apply where the case goes beyond the plaintiff himself, or what in law is the same thing, his agent or servant. It is therefore plain that where a surgeon sues for professional services rendered at the request of the agent of a railroad corporation, no question of contributory negligence is involved. This is manifestly the practical, just, and reasonable rule. It cannot be expected that a surgeon summoned to attend a case of pressing need shall be required to stop and investigate the causes of the accident, and thus take upon himself the functions of judge and jury. It is but just that he should be deemed entitled to rely on the statement of the corporate agent. Where a principal puts it in his agent's power to exercise apparent authority, the man who in good faith acts upon the statements of the agent should be protected. Cruzan v. Smith, 41 Ind. 288. The Supreme Court of Kansas, in a case not unlike the present, said: "The defendant in error was not compelled to institute inquiry as to the moral or legal liability of the railroad company to take care of the disabled employee before receiving him into his hotel, after the general agent of the company had agreed that the company would pay for the board and service." Atlantic, etc., R. Co. v. Reisner, 18 Kans. 458.

The employment of a surgeon is not an acknowledgment of a liability to the injured servant, nor can any admission be tortured from such an act. Evidence of such an employment would be incompetent in an action by the servant, and no admission can therefore be implied. The employment of a surgeon is nothing more than an act of humanity and justice demanded of a railroad company in behalf of a servant injured in its service.

Judgment affirmed.

ON PETITION FOR A REHEARING.

ELLIOTT, J. Counsel for the appellant misconceive the drift of the reasoning in our former opinion, as well as the conclusion announced. We did not decide that a corporation was responsible generally for medical or surgical attention given to a sick or wounded servant; on the coutrary, we were careful to limit our decision to surgical services rendered upon an urgent exigency, where immediate attention was demanded to save life or prevent great injury. We held that the liability arose with the emergency, and with it expired.

We did hold that where the conductor was the high. est representative of the corporation on the ground, and there was an emergency requiring immediate action, he was authorized to employ a surgeon to give such attention as the exigency of the occasion made imperiously necessary; but we did not hold that the conductor had a general authority to employ a surgeon where there was no emergency, or where there was a superior agent on the ground. We think our decision was well sustained by the authorities there cited, and that it is further supported by the reasoning in Chicago, etc., Ry. Co. v. Ross, 31 Alb. L. J. 8; and Pennsylvania Co. v. Gallagher, 40 Ohio St. 637; S. C., 48 Am. Rep. 689.

If the conductor, who is the superior agent of the company on the ground, cannot represent the principal so far as to employ a surgeon to render professional services to an injured servant, and prevent the loss of life or great bodily harm, then it must be said, as it was said by the Supreme Court of the United States in Chicago, etc., Ry. Co. v. Ross, supra, that "If such conductor does not represent the company, then the train is operated without any representative of its owner.

We

The decision in Louisville, etc., R. Co. v. McVey, 98 Ind. 391, is not in conflict with our conclusion in the present case. There the road-master was not the superior agent within reach, and there was no emergency demanding immediate action. These are features which very essentially distinguish the two cases. held in this case a doctrine held in the case cited, namely, that the conductor, or other subordinate agent, has no general authority to employ a surgeon for a sick or wounded servant of the company; but we also held that where the conductor, in control of the company's train and its brakemen, is the highest agent on the ground, he does possess an authority commensurate with an existing and pressing emergency. It seems clear to us, upon principles of fair justice and ordinary humanity, that some one must possess authority to meet an urgent exigency by employing surgical aid to save from death or great and permanent injury a servant under his control. As the reasoning in the McVey case clearly shows, there is still another material difference between the two cases, and that is this: There the road-master appeared to only have authority over the repairs of the road; while here it appears that the conductor had charge of the injured servant, and was the highest officer of the corporation capable of acting as its representative in the emergency which had so suddenly arisen.

So far as concerns the general principle involved there is no conflict, but rather harmony, for the McVey case clearly recognizes the doctrine that the highest agent capable of acting for the company may employ surgical aid in the proper case.

[See 33 Eng. Rep. 187, 208.]

Petition overruled.

MORTGAGE

*

UNCERTAINTY IN DESCRIPTION-EVIDENCE ALIUNDE.-A deed should never be held void when the words may be applied to any intent to make it good, and to that end they are to be taken most strongly against the grantor, for he should not be allowed to say that a description framed by himself was so indefinite that upon au enforcement of the mortgage no title to the property could be acquired. 4 Com. Dig. tit. Fait; 4 Cruise, 203, § 13; Jackson v. Gardner, 8 Johns. 394. It is enough therefore if by any particulars in the description the thing granted can be sufficiently ascertained to enable the court to say that the words chosen by the parties were intended to relate to it. And for that purpose we may go beyond the face of the deed if it refers to some subject-matter in respect to which we can locate and apply the description. Coleman v. Manhattan Beach Imp. Co., 94 N. Y. 229. In the case at bar the mortgage conveys a certain other piece or parcel of land lying and being situated in the county of Tompkins, being part of lot No. 86 in Lansing aforesaid, * * * containing 133 acres of land, the same, more or less. The intention of this last-mentioned piece of land is to mortgage 46 acres of land on the south side of it. next to Mr. Norton's, to secure a part of the consideration. We think there can be no doubt as to what property was intended. **There was no other land of the mortgagor on which the conveyance could operate. He had no other "next to Norton's." In such a case the maxim ut res magis valeat quam pereat applies. It is not easy to find two cases alike, but the principle upon which many have been decided applies here, and I know of no exception to the general rule which requires the court to make a deed effective if from the description given the premises sought to be conveyed can be located with reasonable certainty. Here the description is in some respects inartificial and imperfect, but the intention of the parties is more apparent than in numerous cases cited by the learned counsel for the appellant, where the courts have given effect to instruments objected to for like reasons. To hold otherwise we must exclude the rule which requires even the proper and exact signification of words and sentences to be disregarded when a close adherence to it would prevent the intention of the parties from taking effect (French v. Carhart, 1 N. Y. 102), and that other rule which requires us to select among conflicting descriptions, one which is most certain, and to reject inconsistent or mistaken particulars, when by those which remain the thing intended to be granted can be ascertained. Jackson v. Marsh, 6 Cow. 281; Same v. Loomis, 18 Johns. 81; Loomis v. McNaughton, 19 id. 448; Fish v. Hubbard, 21 Wend. 652. So whether these principles are applied, or regard had only to the description which places the mortgaged premises 'next to Norton's," we think the learned county judge did not err in giving effect to the mortgage, or in holding that the mortgaged premises were well located by means of the description contained in it. People v. Stevens. Opinion by Danforth, J. [Decided Nov. 25, 1884.]

INSURANCE-MARINE-WARRANTY OF SEAWORTHINESS-CONDITION PRECEDENT TO RECOVERY.-In every case of marine insurance there is an implied warranty of seaworthiness on the part of the insured, and if the vessel is not seaworthy the policy does not attach. 1 Arn. Ins. 652, 667; 2 Pars. Cont. (5th ed.) 375; Allison v. Corn Exchange Co., 57 N. Y. 87; Draper v. Commercial Ins. Co., 21 id. 378; Howard v. Orient M. Ins. Co., 2 Robt. 539. This warranty of seaworthiness is a condition precedent, the performance of which must, to entitle the plaintiff to recover, be alleged and proved

from particular average, i. e., that the assured should only be accountable for a total loss. The boat arrived at its port of destination with its cargo entire and in good order, but after about 109 barrels of the potatoes had been taken out and delivered to the consignees in good order the boat sank with the remainder of the cargo, and most of it lost. In an action upon the policy, held, that by the contract the insurers were exempted from the payment of any loss occurring only to a portion of the property, their liability being confined to the absolute or constructive loss of the entire cargo, and that therefore when by the delivery in good order of a material part a total loss during the progress of the insured voyage became impossible, such liability terminated. The clause in the original policy covering any part of the subject insured, and continuing the risk until the goods were safely landed, would, unexplained and unmodified, require the payment of a loss occurring through the destruction, by any of the perils insured against, of any part of the insured property, and would continue the insurance over the entire cargo until it was discharged, even though a part had been safely landed and secured from loss or destruction. The special indorsement, on the other hand, excepts the assured from the payment of a partial loss, and provides indemnity only for a total loss of the whole cargo insured. The provision in respect to the insurance upon goods, etc., and "any part thereof," is undoubtedly qualified by the memorandum excepting roots and vegetables" from any average unless general, and independent of the considerations, would relieve the assurers from any loss upon the property insured unless it was total as to the whole subject. Wadsworth v. Pacific Ins. Co., 4 Wend. 33; Ralli v. Janson, 6 Ell. & Bl. 422; Morean v. U. S. Ins. Co., 1 Wheat. 219; De Peyster v. Sun Mut. Ins. Co., 19 N. Y. 277. It was held in the case of Wadsworth v. Pacific Ins. Co., supra, that an underwriter is not accountable for a partial loss on memorandum articles, except for general average, unless there is a total loss of the particular species, whether the particular article be shipped in bulk or in separate boxes or packages. This also seems now to be settled law in England, as well as this country. Ralli v. Janson, supra; Wallerstein v. Col. Ins. Co., 44 N. Y. 204; Moreau v. U. S. Ins. Co., supra. It is against a partial loss of any part of this subject that the contract seeks to protect the assurers, and there is no rule of construction, which after the risk attached, will permit the diminution by a delivery in good order at the port of destination of a part of the subject insured, and still keep alive the insurance, without defeating the object sought to be effected by the special provision referred to. Moreau v. U. S. Ins. Co., supra. The subject of the insurance here is entire, and is determined when the risk attaches. Any subsequent dealing with the property by the assured which results in the preservation of a substantial part of it, so that it may be delivered in safety and in good order at the port of destination, discharges the obligation of the assurers. Guerlain v. Col. Ins. Co., 7 Johns. 527. The various fallacies by which such a contract as the present has been construed as intended to cover a total loss of a part of the insured subject, when it was shipped in separats boxes or packages, and valued separately, have now been rejected by the courts of the principal maritime countries. Ralli v. Jonson, supra, and continental authorities cited, Wallerstein v. Col. Ins. Co., supra; Phil. on Ins., § 1773; 2 Pars. Ins. 292. Conceiving therefore that there is an irreconcilable repugnance existing between the provisions referred to, the contract must be construed so as to give effect to the stipulations contained in the special indorsement, even though we are thereby required to nullify other provisions contained

in the printed parts of the same contract. It hardly needs the citation of authority to support the long established rule that the printed portions of a contract, wheu repugnant, must be subordinated to those which are written, and that the latter are presumed, from the circumstance of their special and deliberate insertion by the parties, to embrace their real intent and meaning. Leeds v.Mechan. Ins. Co., 8 N. Y. 351; Harper v. Alb. Ins. Co., 17 id. 194; Harper v. N. Y. City Ins. Co., 22 id. 441. The rule requiring courts to construe contracts so as to give effect to every expression contained therein, when it can reasonably be done, is undoubtedly a salutary one, and should not be departed from; but it is not applicable to a case where the repugnance between its various provisions is irreconcilable, and the effect of the construction would be to defeat the main intent of the contracting parties in making it. We think such a repugnancy exists in this case. Chadsey v. Guion. Opinion by Ruger, C. J. [Decided Nov. 25, 1884.]

KANSAS SUPREME COURT ABSTRACT.*

HIGHWAY-WILLFULLY OBSTRUCTING-PENALTY.Where one obstructs a public road or highway by the erection and maintenance of a mill-dam for the sole purpose of supplying water power to run and operate a grist, flour and exchange mill owned by him, and the back-water from the mill-pond formed by the dam renders the road unsafe for crossing, and practically impassable, and to the notification of the road overseer that the back-water from the dam and mill-pond totally obstructs the road, insolently answers the road overseer that "if he wants the water removed, to warn out his men, and dip it out with buckets," held, that such a person is liable to the penalty for a willful obstruction of the public road, under the provisions of § 17, ch. 89, Comp. Laws of 1879. Although the dam was erected and maintained for the sole purpose of supplying water power to run and operate a grist, flour, and exchange mill owned by the appellants, they acquired no right by the erection of the dam for such a purpose to obstruct the highway either with their dam or by the flowage of water. "The purely public use of a highway is paramount to the quasi public purpose of a mill. Where the building of a dam overflows and obstructs the highway, the right to proceed with the dam can only be secured by proceedings vacating the highway, or by taking such steps, either raising the roadway or building a bridge, as may be necessary to secure the free and unobstructed use of the highway." Venard v. Cross, 8 Kans. 259. If the term "willful" is construed only to mean designedly and purposely, then upon the agreed facts, the appellants are guilty. If we give to it greater strength, and say that willful in this connection denotes "governed by a will; without yielding to reason; obstinate, stubborn, perverse, inflexible," then the appellants are guilty. And if we go further, and say that in order to convict the appellants of willful obstruction, they must have committed an act "which a man of reasonable knowledge and ability would know to be contrary to his duty," then he must say that they are guilty, because with the knowledge that they had obstructed the road, they insolently answered the notice of the road overseer, and in defiance of his order continued to obstruct the public road. Territory v. Taylor, 1 Dak. 47; Fearnley v. Ormsby, 4 C. P. Div. (Eng.) 133. See also State v. Castle, 44 Wis. 670; State v. Preston, 34 id. 675. State v. Raypholtz. Opinion by Horton, C. J. [As to meaning of "willful" Am. Rep. 311; 30 Alb. L. J. 434.-ED.]

*To appear in 32 Kansas Reports.

see 47