*449Dissenting Opinion.
Ross, J.I am unable to concur in the opinion of a majority of the court, in this case, for the reason that the facts disclosed by the record do not warrant the court, in my opinion, in the conclusion arrived at.
For the purposes of this opinion, we will take it for granted that the law in this State is settled, that where the facts disclose such an overwhelming emergency as would create a necessity for immediate action in order to save life, or to prevent great suffering, a conductor, employed by a railroad company, has the implied power to bind the employer, in his absence, for necessary medical assistance or nursing, rendered during the existence of such an emergency, to another employe who had sustained an injury. But if the contract therefor was made or the assistance was rendered after the emergency ceased, to exist, he had no sncli power. Evansville, etc., R. R. Co. v. Freeland, 4 Ind. App. 207; Louisville, etc., R. W. Co. v. Smith, 121 Ind. 353.
This action was brought by the appellee to recover upon the following account:
“ The Toledo, St. Louis & Kansas City Railroad Company to Thomas Mylott, Dr. From November 22d, 1887, to December 17th, 1887, inclusive, twenty-five days boarding and caring for William Hoflecker, and fifty-six days boarding furnished during same time to attendants, in all $125.”
The complaint, which is set out in full in the opinion of the majority of the court, alleges specially the circumstances under which said services were rendered, and for that reason I need not restate them.
The evidence discloses the following to be the facts in this case, for there is no conflict in the evidence, except on the question of the contract, and upon that question I accept the appellee’s statement as true, viz.: That on the *450morning of November 22d, 1887, one William Hofleeker, who was then in the employ of the appellant as a brakeman, was seriously injured by having his skull fractured; that a fireman and switchman, employed hy appellant, who were co-employes with said Hofleeker, after he was injured carried him to the house of the appellee, where he had been for eight days, and was at that time, lodging and boarding, and that he called that his home when in Decatur, he being a single man, and his parents residing in the State of Ohio; that his condition was such as to require immediate medical services, which were rendered by one Dr. Freeman; that Hofleeker was a poor man without any means with which to pay for board and nursing; that about half an hour after he had been removed to appellee’s house, James A. Waldron, a passenger conductor on appellant’s road and in its employ, having heard of the accident which had befallen said brakeman, called at appellee’s house and said to appellee “take good care of this man and see that he is all right, and. the company will be responsible for the expenses;” that for four days after the injury said Hofleeker was unconscious, and that he did not recover sufficiently so that he could be safely moved from appellee’s house until December 17th, 1887; that Decatur was the end of one of the divisions of appellant’s railroad; that on the day Hofleeker was injured his grandmother .and two cousins came to see him, and that one of the cousins helped take care of him during the time he was at appellee’s house. Other persons, also, were in attendance, .and helped to care for said injured brakeman.
It is for the board and caring for said Hofleeker, and for the board of those in attendance upon him that this action is prosecuted. Is the appellant liable under these facts ?
It will he observed that a railroad company has been held answerable for medical services rendered a fellow-employe, under the employment of a conductor, only in such cases as where an emergency existed for immediate *451action, and where it was shown that he was the highest officer, in authority, in the railroad’s employ, on the ground at the time. Terre Haute, etc., R. R. Co. v. McMurray, 98 Ind. 358; Terre Haute, etc., R. R. Co. v. Brown, 107 Ind. 336; Louisville, etc., R. W. Co. v. Smith, 121 Ind. 353.
We are at once confronted with the question, “ "What is-an emergency?”
It is “ an unforeseen occurrence or combination of circumstances which calls for immediate action.”
Unless the facts in this case were such as created a necessity for immediate action on the part of the conductor, as the representative of the railroad company, there was no emergency. If there was no emergency requiring the conductor to say to the appellee “take good care of this man and see that he is all right, and the company will be responsible for the expenses,” then he could not create an obligation against the company for any care, nursing or board rendered or furnished said injured brakeman, nor for the board furnished his relatives and others while voluntarily waiting upon him.
The power to obligate the principal or master is not an authority vested in him specially by reason of his position as a conductor, in the principal’s employ, but it is an implied power conferred upon him by the exigencies of the case requiring some one to act, and if an emergency arises sufficient to create a necessity for immediate action in order to save life, or to prevent or allay great bodily suffering, and he assumes, for the principal, to act in procuring the necessary medical assistance to be rendered during the existence of the emergency, to one injured while in the discharge of his duties in the principal’s service, the principal is liable. But if such authority is only to be implied from the exigencies of the case, and that is the law, then it is for the court to say when such exigencies arise as will warrant its assumption.
*452In the case of Evansville & Richmond R. R. Co. v. Freeland, supra, which was a case brought to recover for medica] services rendered in amputating the limb of one Maddox, an employe, at the instance of another employe, this court says: “ That there was an emergency, and an imperious necessity for the preservation of life and to prevent great bodily suffering at the time appellant’s conductor employed appellee to treat said Charles Maddox, which emergency and necessity were concurred in by the local surgeon, who was unable, by reason of the extraordinary service devolved upon him by the injury of so many persons, to give the immediate aid and attention required by the emergency and necessity growing out of the accident; and, reaching the conclusion we have, we do not assume the law to be that the conductor or other subordinate agent has the general authority to employ a surgeon for a sick or wounded servant of the company; hut we do hold that, where the conductor in control • of the company’s train is the highest agent on the ground, he possesses an authority commensurate with an existing and pressing necessity.”
It is clearly and decisively settled by the courts of this State that in ordinary cases a master is not hound to furnish medical attendance, hut that in extraordinary cases where immediate medical atténdance is imperatively demanded, the duty rests upon the master to furnish whatever assistance he reasonably can. But it must he conceded that such an emergency arises as would create a necessity for immediate action only when it is shown that it was necessary in order to save life, or to prevent or allay great bodily suffering.
In the case of The Terre Haute, etc., R. R. Co. v. McMurray, supra, the court, on petition for a rehearing, say: “We did not decide that a corporation was responsible generally for medical or surgical attention given to a sick or wounded servant; on the contrary, we were careful to limit our decision to surgical services rendered upon an *453urgent 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 highest 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.”
In this case the question is, do the facts create such an emergency ? I have no hesitancy in saying that they do not. The person injured was a brakeman in the employ of the appellant. He was at the time of the injury, and for some time previous had been, boarding with the appellee, making his home there. When he was injured he was carried to appellee’s house, and in about half an hour after the conductor, James A. Waldron, came to appellee’s house to see the injured man, and when leaving used the language already quoted with reference to caring for the injured man.
The evidence fails to disclose any refusal on the part of appellee to continue to board the injured man under the contract existing between him and appelle'e, or any necessity for the promise made by the conductor that the railroad company would pay the expenses. Heither is there any proof that by reason of, or relying upon, this promise made by appellant’s conductor, the appellee boarded and cared for said injured brakeman, nor is there any evidence from which it could be inferred that said brakeman was injured while in the discharge of his duties, or even that he was injured on appellant’s railroad.
With the record disclosing such serious omissions of evidence necessary to create an emergency, I am unable to conclude that the appellant is liable. Having reached the *454conclusion that the appellant owed no obligation to tile bralceinan to furnish him either with medical attendance or board and nursing, except in case an emergency arose requiring immediate action on its part to save his life, or prevent great suffering, and the evidence in this case showing no such emergency, I think the judgment of the court below should be reversed, and a new trial granted.
petition for a rehearing overruled April 28, 1893.Filed Januaiy 19, 1893;
Ross, J., dissents.