LIABILITY ΤΟ negligence or fault of the company. Probably there are but few instances of injury to passengers riding upon railroad trains where negligence or fault cannot be traced to the railroad company; but, in cases where there is no such negligence, no responsibility can attach to the company, and no recovery can be had for the injuries sustained. It does not insure the lives or PASSENGERS CARE REQUIRED. health of those who take passage upon its trains. The most that can be required is that it shall use the highest care in the conveyance of the passenger to his destination. There is no more obligation resting upon the company to provide medical care and treatment for passengers unavoidably injured than for passengers who become sick during the journey over the road. In either case the full measure of the duty of the company is to carry the passenger, in the condition in which he may be found, to his destination. Beyond this the company has no interest in the passenger, and therefore has no such concern for his health and soundness that it has in its employees who may be injured while in its service. To furnish medical care and treatment for passengers in such cases would be a mere gratuity, and the funds of the corporation cannot be thus dispensed by the division superintendent without authority from the board of directors. In Cox v. Midland Counties R. Co., 3 Welsby, H. & G. 268, the station master of the railway company at Birmingham, who acted there as chief officer of the passenger and other departments, employed a surgeon to perform a surgical operation upon a passenger injured by a train of the railway company, and the company contested its liability for the service on the ground that its servants had no authority to bind them by contracts of that description, and the court held that there was no liability against the company therefor, because the power to enter into the contracts was not incident either to the employment of the station master or of the superintendent of the road. AUTHOR EMERGENCIES. Perhaps it is true that in certain emergencies the superintendents of railroads are authorized to provide medical and surgical care for injured passengers, and to bind the railroad companies for the payment of such services, and it is probably SUPERINTENDO well that such provision should be made; but in those ITY IN CERTAIN cases it will not be difficult to show the authorization, or a recognized custom or usage, of the company to furnish medical attendance to passengers injured by inevitable accident. In the absence of testimony of express authority from the company, or of a custom or usage from which authority might be implied, the company cannot be bound by such contracts made by the superintendent or his subordinates. If the injury to the passengers resulted from the negligence of the carrier, other considerations would enter into the case which might warrant the implication of authority in the superintendent or some general agent of the company to provide medical attendance and entertainment for them; but, whatever might be the rule in that case, we are of the opinion that there is no such presumption of authority in the division superintendent where the passengers are injured through no fault of the company. It necessarily follows that there was error in the charge of the court, for which a new trial must be given; and as the other questions presented by the plaintiff in error may not again arise, it becomes unnecessary to notice them here. The judgment of the district court will be reversed, and the cause remanded for a new trial. All the justices concurring. Authority of Agent of Company to bind it by Contract for Medical Services to Party injured.-See note to case of Mayberry v. Chicago, etc., R. Co., 11 Am. & Eng. R. R. Cas. 30. PENNSYLVANIA R. Co. V. FLANIGAN. (Advance Case, Pennsylvania. May 24, 1886.) Where an action for compensation for services rendered has, to support it, no evidence of any promise to pay except the plaintiff's own testimony, it must be clear and explicit. His saying, "It was always held out to me that I would be paid a salary," or testimony to like effect, is not sufficient; for it gives only an opinion or conclusion of the witness. The words relied upon as constituting the promise of a salary should be given. So held where plaintiff sold tickets for two railroad companies and sued one for services which, under the circumstances, might have been understood to be inconsis tent with his duties to the other, or to have been covered by his salary from the other. ERROR to the common pleas of Luzerne County, to review a judgment for plaintiff in an action of assumpsit. Reversed. Geo. Sanderson and H. W. Palmer for plaintiff in error. G. L. Halsey and E. S. Osborne for defendant in error. GREEN, J.-After a most careful reading of all the testimony in this case, we are obliged to say there is no evidence whatNO CONTRACT TO ever of an express contract for the payment of wages or salary by the defendant to the plaintiff. The plaintiff himself, being examined at great length, does not state that the defendant or any of its officers ever agreed to pay him any stipu PAY SALARY. lated compensation for the service he rendered. It was undoubtedly true that he did sell tickets for the defendant, and was duly appointed passenger agent at Wilkesbarre by authority of the company. It is also true that he performed the service to which he was appointed; and it is not questioned that his performance was entirely faithful throughout. BETWEEN ROADS If there were nothing else in the case he would be entitled to compensation adequate to the service rendered, upon the principle of a quantum meruit. But there are other material FACTS CONCERNfacts in evidence. During all the time of the service ING AGREEMENT for which the present claim is made the plaintiff was in the employment of the Lehigh Valley R. Co. as ticket agent at Wilkesbarre station. For that service he was paid a fixed monthly compensation, with privilege to sell tickets upon commission for certain Western railroad companies. Being thus engaged, the Lehigh Valley R. Co., by contract with the Pennsylvania R. Co., agreed that the latter company might use the terminal facilities of the former at Wilkesbarre, including the passenger and freight stations, for the purposes of the North & West Branch R. Co., extending from South Wilkesbarre to Catawissa. This last named company was in the control of the Pennsylvania R. Co., and the terms of the arrangement with the Lehigh Valley Co. included the sale of tickets over the North & West Branch and to points beyond, and the arrival and departure of passengers, and the landing and shipment of freight from the Wilkesbarre station of the Lehigh Valley Co. In consideration of these privileges, the Pennsylvania R. Co. agreed to pay the Lehigh Valley Co. five cents for every passenger coming into or going out of the station, and a sum per ton for ali freight handled. All the service was performed by the agents of the Lehigh Valley Co. for the Pennsylvania Co. It was therefore undoubtedly the fact that the compensation for the service was to be paid by the Pennsylvania Co. to the Lehigh Valley Co. FOR TICKETS. For SELLING The Lehigh Valley Co. directed their passenger agent, the plaintiff, to sell tickets for the Pennsylvania Co., and he did so. selling tickets for the latter company compensation is QUANTUM MERUIT claimed, which being refused, the present action is COMPENSATION brought to recover it. There being no proof of an express contract to pay a specific compensation, the case was tried upon the theory of a quantum meruit, and evidence was given of the value of the service. The court left the case to the jury upon some testimony of the plaintiff that an agent of the defendant had promised him he should be paid for his service. Can a recovery be had in such circumstances? There is no doubt that the Pennsylvania Co. did appoint the plaintiff as its agent to sell tickets for it at this station, and that in pursuance of that appointment he acted for it and gave the usual bond given by passenger ticket agents. It must also be conceded that the Lehigh Valley Co. knew of this agency and assented to it,-in fact, directed the plaintiff to perform the service. Thus far the facts are without controversy, and if these facts alone constituted a right of recovery the verdict and judgment should stand. CONTRACT WITH But it is denied by the defendant that these facts alone confer a right to recover. The denial is based upon an allegation that the defendant contracted with the Lehigh Valley Co. for COM the service of the plaintiff, and paid that company for TIFF'S SERVICES. the service; that they never agreed with the plaintiff to pay him any compensation; that the Lehigh Valley Co. never consented to the payment of compensation by the defendant to the plaintiff, and that it is against the policy of the law to allow the servant of one master to recover compensation for service rendered, during the continuance of his employment, to another master. The proof that the service in question was contracted for between the two companies is direct, positive, clear, and entirely uncontradicted; and the compensation for the service was to be paid by the Pennsylvania Co. to the Lehigh Valley Co. There is not a particle of evidence proving or tending to prove that the Lehigh Valley Co. agreed that its agent, the plaintiff, should or might receive compensation for the service in question from the defendant, nor that it had any knowledge that such compensation was to be paid. The only evidence tending to show that the defendant agreed TESTIMONY or to pay compensation to the plaintiff is found in the testimony of the plaintiff. Alfred Walter was the superintendent of the North & West Branch Co. The plaintiff testified to a conversation with him and was asked: Q. What was said? OF PLAINTIFF CON CERNING CON VERSATION WITH SUPERINTEND. ENT. A. Mr. Walter promised on several occasions to pay me a sal ary. Q. Mr. Walter promised on several occasions to pay you a salary? A. Yes, sir. Q. When did you meet him again after this time, about the first of December? A. I saw Mr. Walter probably on an average of once a month. Q. Covering what period? A. From the first of December, 1882, up to-well, I seen him all the time during the time I was in their service. In regard to paying my salary, the last time I talked with him in regard to that was probably in April or May, 1884. Q. What did he say at these conversations? A. He had always held out to me that I would be paid a salary for the services performed. With the exception of a repetition of the last answer on crossexamination, the foregoing is the whole and the only evidence IN TO PROVE CONTRACT of a contract by the defendant company to pay compensation to the plaintiff for his services. It will be seen at once EVIDENCE that this is but the expression of a conclusion or SUFFICIENT opinion of the witness as to the effect of the words used in the conversation stated. The words themselves are not given, nor the substance of them. Whether they amounted to a "promise" would be for the jury to judge, if they only knew what they were; but the plaintiff did not give them; so when he said that Mr. Walter "held out" to him that he would be paid, he states nothing more than a conclusion of his own. The jury could not tell whether Mr. Walter really "held out" such an idea, because they did not know the words he used. This kind of evidence is altogether insufficient to prove an express promise to pay by the defendant. The circumstances and relations of the parties were such that nothing but distinct and clear words of an agreement or contract to pay can suffice to create such an obligation. No doubt, if there was distinct proof of an actual promise to pay by the defendant, and satisfactory proof of the consent of the Lehigh Valley Co. that its agent should receive such pay, the defendant would be legally bound to pay. But in our opinion nothing short of this will suffice. The plaintiff being in the constant employment of the Lehigh Valley Co., and paid by it for his entire service, could not lawfully contract to render service during the same time to an- RENDERING SERother company; especially a competing company, as this one was, for compensation, without clear proof of AUTHORITIES. the knowledge and consent of the Lehigh Valley Co., both to the employment by the defendant and the payment of compensation. VICE TO COMPET- In Everhart v. Searle, 21 P. F. S. 256, we said (Thompson, C. J.): "The case before us is rather novel. It involves a question whether the same person may be an agent in a private transaction for both parties, without the consent of both, so as to entitle him. to compensation to both or either. We have the authority of Holy Writ for saying that no man can serve two masters; for either he will hate the one and love the other, or else he will hold to the one and despise the other.' All human experience sanctions the undoubted truth and purity of this philosophy, and it is received as a cardinal principle in every system of enlightened jurisprudence." In the same opinion it was further said: "There was plausibility and seeming force in the argument that as Flagg, the plaintiff's principal in the sale, was not injured by the arrangement with the defendant there was nothing wrong in making that arrangement. This is specious, but not sound. The transaction is to be regarded as against the policy of the law, and not binding upon a party who has a right to object to it." This was said of one who had been appointed agent of one person to sell, and of another person to buy, the same property. He |