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is responsible for want of ordinary stance of the appellee's counsel, the care and skill, and this, too, whether court instructed the jury as follows: his services are given gratuitously, or "In furnishing a substitute, the denot. But in this case, if plaintiff knew fendant was only required to use ordefendant was going away, and the dinary care to furnish a physician services of the defendant were given possessing that degree of skill and gratuitously, he could only be held re- ability as is usually possessed by sponsible for such treatment as he ad- physicians engaged in the general ministered personally, and cannot be practice of medicine in the city of held for any negligence or want of Dallas and vicinity." The court of skill in Dr. Minor."

civil appeals said, inter alia : "WhethThe surgeon of a railroad company er Dr. Hardin may be termed a partwhose duty it is to treat injured em- ner of appellee in the treatment of apployees of the company, and who, on pellant's wife, or not, still, appellee going out of town, stated to the com- being a physician himself, and having pany that if anything happened in his by contract undertaken the treatment absence a certain other physician of Mrs. Lee, and having secured the would look after it for him, is not re- services of Dr. Hardin to relieve himsponsible to an employee of the com- self of the necessity of attending her pany for the negligence of such other himself, and to serve his own interests, physician, where there is nothing to appellee will not be heard to say that, show any agreement as to pay between in such case, the duty resting upon the two physicians, and the substitute him in the selection of a substitute is paid by the company.

Hitchcock v. physician was simply that of ordinary Burgett (1878) 38 Mich. 501, supra. care. It was clearly shown that at

In Stokes v. Long (Mont.) supra, the time appellee declined to respond the court said: If one physician, to appellant's call to attend his wife, upon leaving temporarily the commu- and sent in his stead Dr. Hardin, Mrs. nity in which he is engaged in prac- Lee was at a critical stage of her illtice, recommends to his patients the ness, and, under all the circumstances employment, in case of need, of some of this case, it was his duty, in sendother physician who is not in any ing a substitute to wait on appellant's sense in his employment, nor associat- wife, to select a physician possessing ed with him as a copartner, he is not that degree of knowledge, skill, and liable for injuries resulting from neg- care which physicians practising in ligence or want of skill in the latter, similar localities ordinarily possess, in case he is employed. In such case

and for a failure to perform this duty, the employment of the latter is under

if such failure resulted proximately in an independent contract, and he is solely responsible for the result."

injury to appellant's wife, he would

be primarily liable in damages." For hospital cases, see I. supra.

It will be seen that the supreme III. Contract cases.

court does not refer in terms to the In the reported case (MOORE v. LEE, question asked by the jury, whether ante, 5) the trial resulted in ver- the defendant was required to furnish dict and judgment for the defendant, as his substitute a physician of equal which was reversed by the court of efficiency with himself, but discusses civil appeals (1913) – Tex. Civ. App. )

the case on the apparent theory that -, 162 S. W. 437, and this decision is the duty of the contracting physician now reversed by the supreme court. extended no further than the exercise At the trial the jury asked the court of ordinary care in the selection of a to instruct them whether or not the substitute. The court, in this respect, defendant was required to furnish, as follows the very similar case of Myers his substitute, a physician possessing v. Holborn (1895) 58 N. J. L. 193, 30 the same degree of skill and qualifi- L.R.A. 345, 55 Am. St. Rep. 606, 33 Atl. cations as he himself possessed. In 389, which it sets out at some length response to this request, and at the in- in the opinion.

It thus appears that these two cases hold that a physician who has contracted to attend a woman through her confinement is required to do no more than to turn the case over to any reputable physician. It must be confessed that this does not seem satisfactory.

It may be noted, in this connection, that in Hunter v. Ogden (1871) 31 U. C. Q. B. 132, a husband in the trial court recovered a verdict of $500 from a physician, for breach of a contract to attend his wife during childbirth; but, on appeal, the court reduced the damages to 1 shilling, on the ground that most of the damages were for the personal injury and suffering of the wife, which could not be recovered for ia that action.

In Robinson v. Crotwell (1911) 175 Ala, 194, 57 So. 23, 2 N. C. C. A. 386, where, after consulting with the plaintiff, the defendant procured his brother to perform an operation, for a compensation agreed upon and to be paid by the plaintiff, the court said: “Nor is there any suggestion in pleading or in proof that defendant negligently advised the employment of an unskilful or incompetent surgeon to perform the operation. Under these circumstances, the defendant was not responsible for any default on the part of the operating surgeon, who was practising his profession as an independent agent. Myers v. Holborn (N. J.) supra. For hospital cases see supra, I.

B. B. B.



New Jersey Court of Errors and Appeals

December 4, 1913.

[ocr errors]

(85 N. J. L. 176, 89 Atl. 53.) Officer — honorably discharged soldier or sailor - abolition of office.

A statute enacting that no honorably discharged soldier, sailor, or marine in public employment shall be removed except for cause and after a hearing does not preclude the abolition by a municipal corporation of an office or position held by one of the designated class, when such action is taken in good faith and for the betterment of the public service.

[See note on this question beginning on page 205.]

ERROR to the Supreme Court to review a judgment setting aside upon zertiorari a resolution of the board of councilmen removing prosecutor from the position of assistant water purveyor of Bayonne. Reversed.

The facts are stated in the opinion of the court. Mr. Warren Dixon with Mr. Daniel ecutor, v. Bayonne, 58 N. J. L. 325, 33 J. Murray, for plaintiff in error: Atl. 734; State, Loper, Prosecutor, v.

The resolution of January 1st, 1908, Millville, 53 N. J. L. 362, 21 Atl. 568; created an "office," as distinguished State, Bradshaw, Prosecutor, v. Camfrom a “position," so that the title to den, 39 N. J. L. 416. the same cannot be determined by an The incumbent in such "office" is action through certiorari.

entitled to be heard in court upon proState ex rel. Lewis v. Board of Pub- ceedings to determine his title. lic Works, 51 N. J. L. 242, 17 Atl, 112. State, Haines, Prosecutor, v. Cam

Quo warranto, and not certiorari, den County, 47 N. J. L. 454, 1 Atl. 515; is the proper remedy,

State, Bradshaw, Prosecutor, v. CamBumsted y. Blair, 73 N. J. L. 378, den, 39 N. J. L. 416; Clayton v. Hud64 Atl. 691; State, Robinson, Pros- son County, 60 N. J. L. 364, 37 Atl.

4 A.L.R.-13.


725; Schwarz v. Dover, 70.N. J. L. 502, considered that Harker's discharge 57 Atl. 394.

from the service of the municipality Messrs. Benny & Cruden, for de

was in violation of this statutory fendant in error:

The defendant in error held a “posi- provision, and set aside the resolution," and not an "office."

tion. State ex rel. Bownes v. Meehan, 45

The resolution complained of not N. J. L. 189; State ex rel. Lewis v. only discharged Harker from the Board of Public Works, 51 N. J. L. 240, employ of the city, but abolished 17 Atl. 112; State v. Broome, 61 N. J. the position that he occupied. It L. 115, 38 Atl. 841; State ex rel. Stew

was a part of a general scheme, the art v. Hudson County, 61 N. J. L. 117, 38 Atl. 842.

purpose of which was to reorganize The term of his position was not

the water department of the city; fixed by law.

that department, in the judgment of State ex rel. Stewart v. Hudson the board of councilmen, having County, supra.

been conducted in a manner clearly The resolution abolishing the posi- detrimental to the interests of the tion of defendant in error is void.

taxpayers, there having been a State ex rel. Ingram v. Street &

daily waste of water amounting to Water Comrs. 63 N. J. L. 542, 43 Atl.

more than 1,000,000 gallons, and 445. Certiorari is the appropriate rem

bills for water supplied by the city edy.

to consumers amounting to more State, Daily, Prosecutor, v. Essex

than $200,000 having been allowed County, 58 N. J. L. 319, 33 Atl. 739; to go uncollected. The department, at State, Peterson, Prosecutor, y. Salem the time of the reorganization, was County, 63 N. J. L. 57, 42 Atl. 844. double-headed, the responsibility for

Gummere, Ch. J., delivered the its proper management being dividopinion of the court:

ed between the water purveyor and Harker, the defendant in error,

the water registrar, each of whom sued out a writ of certiorari to re

had an assistant. By the reorganiview the validity of a resolution of

zation scheme these two offices, tothe board of councilmen of Bayonne, gether with the positions of assistadopted January 22, 1912, the effect ants to the holders thereof, were of which was to remove him, with- abolished, and the department was out a hearing, from the position of placed under a single head, who was assistant water purveyor of that made responsible for its proper conmunicipality. His claim is that, be- duct, and an assistant and chief cause he was an honorably dis- clerk were provided for him. charged sailor of the Spanish War,

There is no suggestion in the case his removal was in violation of the (notwithstanding the contention of provision of the first section of the counsel to the contrary) that in reAct of March 27, 1907 (Comp. Stat. organizing the government of the p. 4873), which enacts that no hon- water department the board of orably discharged soldier, sailor, or councilmen was actuated by any ulmarine, who has served in any war

terior motive, or had any other purof the United States, holding an pose than the providing of a more office or position under the govern- efficient system of operation in this ment of the state, or of any city, important branch of the city govtown, or county therein, whose term ernment; and, this being so, its acof office is not fixed by law, and who tion did not run counter to the Statreceives a salary from the state, or ute of 1907, notwithstanding the such city, town, or county, shall be fact that one of its incidents was removed from his office or position the abolition of the position held by except for cause and after a hear- Mr. Harker. The purpose of the ing, but shall hold the same during statute is to protect members of the good behavior. The supreme court .

class embraced within it against re


or sailor

(85 N. J. L. 176, 89 Atl. 53.) moval from the public service with. terment of the public service, is deout cause, to prevent them from clared in each of the being affected by political changes cases cited to be a honorably disin the state and municipal govern- legitimate exercise charged soldier ments, but not to interfere with the of municipal power, abolition of carrying into effect of those changes notwithstanding the in the administration of public af- provisions of statutes similar to the fairs which past experience or new one appealed to by the defendant in conditions demonstrate are neces- error. That being so, the resolution sary for the public welfare. State, brought up by the certiorari should Evans, Prosecutor, v. Hudson Coun- have been affirmed by the Supreme tv. 53 N. J. L. 585, 22 Atl. 56; State, Court. Beirne, Prosecutor, V. Street & The judgment under review must Water Comrs. 60 N. J. L. 109, 36 be reversed. Atl. 778; Sutherland v. Street & Water Comrs. 61 N. J. L. 436, 39

NOTE. Atl. 710; State, Caulfield, Prose

It is held in the reported case cutor, v. Jersey City, 63 N. J. L.

(HARKER V. BAYONNE, ante, 193), that 148, 43 Atl. 433; Stivers v. Jersey

a statute designed to protect the tenCity, 70 N. J. L. 606, 57 Atl. 143,

ure of office of veteran soldiers and s. c. on error, 70 N. J. L. 827, 59 Atl.

sailors does not prevent the abolition 1118. The abolition by a municipal- of their offices in good faith.

For a ity of a position or an office held by discussion of this point, see subd. IIJ. one of the favored class designated of the annotation beginning at p. 205, in the statute, when such action is

upon the general subject of "Power to taken in good faith, and for the bet- abolish or discontinue office."

CITY OF SHAWNEE, Piff. in Err.,


Oklahoma Supreme Court (Division No. 2) - February 18, 1913.

(37 Okla. 125, 130 Pac. 546.) Officer — insufficient revenue discontinuance of office.

1. Where the revenues of a city are not sufficient to pay an assistant chief of police, the council have the right to discontinue the office, and to discharge the incumbent of that office without charges having been preferred against him.

[See note on this question beginning on page 205.] - vested right.

2. There is no vested interest or right in an office.

(See 22 R. C. L. 376.] Headnote 1 by ROSSER, C.

ERROR to the Pottawatomie County Court (Reasor, J.) to review a judgment in plaintiff's favor in an action brought to recover salary alleged to be due by defendant to plaintiff, for services in the police department. Reversed.

The facts are stated in the Commissioner's opinion.

Messrs. E. E. Hood and W. M. En- the following resolution and motion: gart, for plaintiff in error:

‘Motion by Clayton, seconded by We contend that the city has the in- Day, that the mayor appoint a comherent right, in the absence of an mittee of four to act in conjunction express law to the contrary, to abolish

with himself to investigate the varithe office held any police officer of the city, when the finances of the city

ous departments of the city, and aswarrant such action.

certain as best they can where reLeadville v. Bishop, 14 Colo. App.

trenchments can be made, thus cur517, 61 Pac. 58; 28 Cyc. 512; Heath v. tailing the expenses of the city as Salt Lake City, 16 Utah, 374, 52 Pac. much as it is possible to do so. Mo602; 2 Abbott, Mun. Corp. 630; Peo- tion carried. The mayor appointed ple ex rel. Evans v. Public Parks, 60

the following members of the comHow. Pr. 130; Langdon v. New York, mittee: Clayton, Pierson, Love, and 92 N. Y. 427; Mèchem, Pub. Off. 445,

Wayne.' That on the 19th day of 454; Ex parte Hennen, 13 Pet. 256, 10

December said committee made a L. ed. 151; Phillips v. New York, 88 N. Y. 245; Venable v. Police Comrs.

report to the mayor and council in 40 Or. 458, 67 Pac. 204; Neumeyer v.

compliance with said resolution, a Krakel, 110 Ky. 624, 62 S. W. 518; copy of which report is hereto atState ex rel. Goodnow v. Police Comrs. tached, marked 'Exhibit A,' and 184 Mo. 109, 71 S. W. 215, 88 S. W. made a part of this agreed state27; Moores v. State, 54 Neb. 486, 74

ment of facts: N. W. 823; Lincoln v. Yeomans, 34 Neb. 329, 51 N. W. 844; Re Lazenby, "Report of Council Ways and Means

. 76 App. Div. 171, 78 N. Y. Supp. 302;

Committee. People ex rel. Sims v. Fire Comrs. 73 "To the Mayor and Council of the N. Y. 437; People ex rel. Griffin v. City of Shawnee, Lathrop, 142 N. Y. 113, 36 N. E. 805; "Gentlemen :People ex rel. Cline v. Robb, 126 N. Y.

"After a careful investigation 180, 27 N. E. 267; Hudson v. Denver,

into the financial and other condi12 Colo. 157, 20 Pac. 329.

tions of the fire department, police Rosser, C., filed the following department, and street department

, opinion:

of the city, with a view to bring the This was an action by John Hew- cost of their maintenance within the ett against the city of Shawnee to limits of the revenues, your commitrecover an amount which he claims

tee recommends as follows: 1st. the city owed him for salary for the That one man be cut off from the month of January, 1908, as assist- central fire station force, and that ant chief of police for said city. The for the protection of property the case was tried upon an agreed state- two substations be maintained as at ment of facts, which is as follows: present. 2d. That the day force of

“First. It is agreed that John police shall consist of the chief of Hewett was the regularly appointed, police, two patrolmen and a desk

a qualified, and acting assistant chief sergeant. The night force to conof police of the city of Shawnee on sist of two patrolmen, one of whom the 31st day of December, 1907, at may be designated as assistant a salary as provided by ordinance chief, the office of which we hereby duly passed providing for assistant recommend be abolished; and one to chief of police, of seventy-five ($75) be the merchant's police, and a desk dollars per month, which ordinance sergeant; we also recommend that was in force and effect during the the city cannot at present maintain month of January, 1908.

a city detective. This reduction till "Second. That after the adoption place the cost of the force, $490 of the Constitution, and prohibition per month, a saving of $315, monthwent into effect in this state, the ly. We further recommend that revenues of the city dropped off to the cost of feeding the city prisona large extent, and, in order to econ- ers who are used on street work omize, the mayor and council on the shall be borne by the poll tax and 3d day of December, 1907, adopted street revenues. 3d. We further

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