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subsequent to that of the junior mortgage. The lien was thus carried to the surplus, when the property had been taken out of the reach of the junior lien by applying it to the senior lien.
If an heir mortgage his interest in the land inherited, and the land is sold by the administrator for payment of the estate's debts, the lien of the mortgage is not defeated, 32 but is trano ferred to the balance of the fund after paying such debts: Ball v. Green, 90 Ind. 75. See, also, Koons v. Mellett, 121 Ind. 585, where it is held that a judgment against a devisee of lands, afterward sold to pay debts, follows the proceeds of the sale, and binds such proceeds to the same extent that it bound the land. To the same effect is Ballenger v. Drook, 101 Ind. 172.
The same principle has been applied where the mortgaged real estate has been diverted from the lien by condemnation proceedings, and equity has transferred the lien to the fund awarded as damages: Sherwood v. Lafayette, 109 Ind. 411; 58 Am. Rep. 414.
If, instead of selling the entire property upon the senior decree, a fractional part of it had been sold for a sum sufficient to pay the senior debt, there could then be no doubt that the remaining property would have continued subject to the junior purchase, with no interest to the appellee therein, excepting in the right of redemption. It would seem, therefore, that the whole property, equitably the property of the appellant, having been sold and swept from him, he should have a just claim to that part of the proceeds not essential to the satisfaction of the senior lien. To him it stands in place of so much of the property as was not necessary to meet the elder mortgage.
Appellee's learned counsel argue that the purchase under the junior decree was presumably upon the theory that the appellant regarded the property as of sufficient value to pay the senior debt in addition to the amount bid upon the junior debt. In Myers 5. O'Neal, 130 Ind. 370, such presumption, if it exist, is held not conclusive. But, however this may be, we cannot bring ourselves to the conclusion that equity will permit the debtor to take the fund which is the result of property pledged to the 88 security of a debt not satisfied, and, by reason of his insolvency and his adverse claim to said fund, deprive the creditor of all means of collecting the indebtedness.
It is argued, also, that the appellant having been a party to each decree, and having failed to preserve, by order of the court, his claim to any surplus, he is now precluded. We have no statute requiring the decree to declare the order of distribution of any surplus, and the usual practice is to direct that any surplus remaining shall be returned for distribution, as the court may direct. We have no statute prescribing the method or practice in enforcing distribution and in determining the interests of lienholders therein. At the time of the foreclosure, it cannot be known that there will be a surplus, nor can it be known that, when a surplus is found, it should be distributed to a particular person, since the then owner of the equity of redemption may not be such owner when the time for distribution arrives. In Habersham v. Bond, Ga. Dec., pt. 2, 46, it was expressly held that, though a statute permitted distribution upon motion, if the rights of the parties were not clear and free from dispute, resort to equitable remedies was not only the proper but necessary course.
In Purviance v. Emley, 126 Ind. 419, the principle here contended for by the appellant was recognized. There Purviance was a junior lienholder and a defendant to the foreclosure of the senior lien, with no order as to the distribution of surplus. The decree directed the two-thirds of the land to be first offered, reserving the inchoate interest of the debtor's wife. This offer was insufficient, and a sale of the whole of the lands secured a surplus, less than the value of one-third of the land.
This court said: "If any part of it belongs to Sexton Emley [the debtor], appellant is entitled to have it applied, 84 so far as it will go to the payment of his judgments."
If the junior mortgagee had been a party defendant in the proceeding to foreclose the senior mortgage, and the decree had barred his equity of redemption, he, nevertheless, would have been entitled, in an independent suit, to foreclose his junior mortgage: Coleman v. Witherspoon, 76 Ind. 285.
As we have already said, there is no question in this case as to the appellant's right of redemption, and, as we have seen, it does not appear that any right or equity under the junior mortgage was abridged by the senior decree, either expressly or by implication. Nor was an issue made by the appellee under which the conflicting interests of himself and the appellant could have been adjudicated. As between the mortgagees, no issue could be presumed to have been raised affecting the ultimate distribution of a surplus between either and the mortgagor. The decrees were concurrent in time, and the only advantage possessed by either is in the seniority of the elder mortgage.
If we treat the equity of redemption under the junior mortgage as foreclosed, and all possible conflict settled as between the two mortgages, we are yet unable to observe how the appellee may profit by this conclusion, to the extent either of canceling
a debt not paid or standing upon an adjudication between mortgagees as in his favor for any surplus arising from the senior decree.
We conclude, therefore, that the circuit court erred in sustaining the appellee's demurrer to the appellant's cross-complaint, and the judgment is reversed, with instructions to overrule said demurrer.
PAYMENTS-APPLICATION OF-MORTGAGE OVERPLUS.-A provision in a mortgage that the net proceeds of any sale made thereunder shall be applied to the payment of the mortgage debt, and any overplus returned to the mortgagor, is not a direction by him to apply snch overplus to the payment of any particular debt, and the mortgages may apply it to any other claim held by him against the mortgagor: Baum v. Trantham, 42 S. 104; Am. St. Rep. 697. See, also, the extended note to Wygal v. Bigelow, 16 Am. St. Rep. 501.
PITTSBURGH, CINCINNATI, CHICAGO, AND ST. LOUIS
(141 INDIANA, 83.) CORPORATIONS-LIABILITY FOR WILLFUL ACT OF ACIENT. - A corporation is responsible for the acts of its agent performed while engaged in the discharge of duties within the general scope of his agency, although the particular act was willful, and Dot directly authorized.
LIABILITY FOR AGENT'S WRONGFUL ACT.-A corpora. tion intrusting a general duty to an agent is liable to an injured person for damages flowing from the agent's wrongful act, done in the course of his general authority, although, in doing the particular act, the agent may have failed in his duty to his principal, and disobeyed bis instructions.
PLEADING.-A COMPLAINT MUST BE CONSTRUED upon the theory most clearly outlined by the facts stated therein.
RAILROADS-DUTY TO FURNISH SURGEON AND LIA. BILITY FOR HIS ACTS.-A railroad company is under no legal, obligation to provide surgical aid for its injured employés. If it does so, voluntarily and gratuitously, its liability cannot be extended beyond its negligence, if any, in the selection of a surgeon.
RAILROADS–LIABILITY FOR SURGEON'S NEGLIGENCE. A railroad, voluntarily assuming to employ medical aid for its inJured employés, is bound only to exercise reasonable care and diligence to employ a competent physician or surgeon, but is not required to select one of the highest skill or longest experience. If it exercises this required care and diligence, its duty terminates; and it is not liable for the subsequent malpractice or wrongs of such physician or surgeon, committed in or about the treatment of the servant
N. O. Ross, G. W. Funk, and B. C. Moon, for the appellant.
84 JORDAN, J. The appellee brought this action to recover damages against the appellant (a railroad corporation engaged in
the business of a common carrier) for "unlawfully, wrongfully, and unnecessarily amputating appellee's right arm."
The principal errors assigned in this court are: 1. Overruling demurrer to complaint; 2. Sustaining demurrer to second paragraph of answer; 3. Overruling a motion for judgment in favor of appellant upon the special verdict of the jury. The complaint, inter alia, alleges: “That on November 21, 1891, the appellee was a servant of appellant, engaged as a brakeman; that while at the station of Red Key, in Jay county, Indiana, in making a coupling, his right arm was accidentally caught, crushed, and injured; that immediately after plaintiff's said injuries, he was taken by the servants of said defendant to the office of one Dr. G. W. Fertich, being then and there one of a number of physicians employed by the defendant to 85 render medical and surgical assistance to the servants and employés of said de fendant while engaged in their respective duties as such employts and servants; that immediately after plaintiff's arrival at said Dr. G. W. Fertich's office for medical and surgical treatment, said G. W. Fertich proposed to give the plaintiff chloroform, in order to render plaintiff insensible to and unconscious of pain while his said hurts and injuries were being examined and treated; that before plaintiff consented to take said chloroform, he informed said Dr. G. W. Fertich that he would not take chloroform, unless he, said Dr. G. W. Fertich, would promise plaintiff that his arm should not be amputated while he was under the influence of chloroform and insensible and unconscious therefrom; that thereupon said Dr. G. W. Fertich promised plaintiff that he would not amputate and cut off plaintiff's injured arm, and plaintiff, relying on such promise, consented to, and did then and there, take chloroform, and became then and there unconscious and helpless from the effects thereof, said chloroform being then and there administered to plaintiff, by the order and direction of said Dr. G. W. Fertich, by his assistant, one Dr. Shepherd; that while plaintiff was then and there insensible, unconscious, and helpless from the effects of said chloroform, the said Dr. G. W. Fertich did then and there wrongfully, unlawfully, and unnecessarily cut off the plaintiff's right arm about six inches above the elbow; that by reason of the unlawful, unnecessary, and wrongful act of said Dr. G. W. Fertich, in amputating and cutting off plaintiff's right arm as aforesaid, plaintiff suffered great bodily and mental anguish and pain, and is now suffering great pain of body and mind; that plaintiff has thereby been rendered totally incapacitated from doing manual labor, and permanently injured physically in his means of livelihood and support, 86 and that, at the time of his injuries complained of, there was no good or sufficient reason or cause, in fact, or in the science of medicine and surgery, for the amputation of plaintiff's said arm; that plaintiff's said arm could and would have been saved to him by competent and ordinarily skillful medical and surgical treatment."
To this complaint, after having unsuccessfully assailed it by a demurrer, appellant filed an answer in two paragraphs. The first was a denial, and the second was as follows :
"And for a second and further answer, the defendant says, that at the time complained of, it owed the plaintiff no duty, nor was it under any legal obligations to furnish him the services of a physician or surgeon to treat him for the injury stated in his complaint; that at the time complained of, G. W. Fertich, of Dunkirk, in Jay county, Indiana, was employed by the year to give and render services as a physician and surgeon to persons injured upon the defendant's road, whether employés or others, which services were gratuitous to the persons receiving them, and were provided for the exigencies of each case, temporarily, until the patient could be removed, or otherwise provided for, and that such services could be accepted or refused by each person at his own pleasure. And the defendant further says, that in the selection and employment of said Fertich, for the purposes aforesaid, it used due care to procure a skillful and competent surgeon and physician, and believes him to be such, and if incompetent or incapable, in any respect, it had no knowledge of the fact at the time of his employment or since; and that he was the most competent and skillful surgeon and physician in that locality. And the defendant further says, that if said Fertich made any promise or agreement with the plaintiff, as charged in 87 the complaint, it was outside his duties under said employment and not authorized by the defendant."
A demurrer was sustained to this second paragraph of answer, and appellant excepted.
The contentions of the learned counsel for the appellant are: 1. That the complaint is not sufficient to entitle appellee to recover against appellant; 2. That the second paragraph of answer was a defense to the complaint; 3. That the gravamen of the complaint is that of malpractice upon the part of Fertich, the physician, and for such appellant is not liable in damages; 4. That the complaint does not allege that Fertich was an agent of plaintiff, nor do the averred facts sustain such an assumption; nor do they show that a duty, by virtue of any law or contract, existed, upon the part of appellant, to furnish to appellee the