McCarthy v. Missouri R.R. Co.

• Decision Date: 15 April 1884
• Citation: 15 Mo.App. 385
• Parties: J. MCCARTHY, Respondent, v. MISSOURI RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 385

J. MCCARTHY, Respondent,

v.MISSOURI RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 15, 1884.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

DAVIS & DAVIS, for the appellant: The superintendent of a railway corporation is not authorized, by virtue of his position, to employ a physician at the expense of the company to attend a person injured by its cars.-- Brown v. Railroad Co., 67 Mo. 122; Tucker v. Railroad Co., 54 Mo. 181; Stephenson v. Railroad Co., 2 Duer, 341; Cox v. Railroad Co., 3 Exch. 368; Meyberry v. Railroad Co., 75 Mo. 492.

T. J. ROWE, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This action was brought before a justice of the peace to recover the sum of fifty dollars for professional services rendered by the plaintiff as a physician and surgeon, at the request of the defendant, Charles M. Allen, superintendent of the defendant, the Missouri Railroad Company. On trial anew in the circuit court, the plaintiff had a judgment against both defendants for forty-five dollars. He afterwards entered a remittitur as to the defendant Allen. The other defendant has appealed.

The record recites that, when the case was called for trial, both parties waived a jury in open court; but the court, nevertheless, ruled that a jury must be called to try the case, to which ruling the defendants excepted at the time. Both parties then examined the panel of jurors as called, and made the usual peremptory challenges, and the jury was then sworn in due form.

At the trial, the only evidence offered on behalf of the plaintiff was his own testimony, which was as follows:--

“I am a practicing physician of the city of St. Louis. On the 12th day of June, 1883, I was called to attend one John Deasey, who had been injured by one of the cars of defendant Missouri Railroad Company. I dressed the man's wounds, and, turning to Charles M. Allen, superintendent of the Missouri Railroad Company (one of the defendants herein), said: ‘This man is badly hurt; shall I attend him?’ Mr. Allen answered: ‘Go ahead and attend him.’ I knew and know Mr. Allen was superintendent, because I have seen his name printed on the cars of the Missouri Railroad Company as superintendent. I have no other knowledge of his position or duties. I do not expect to hold Mr. Allen for this debt, because I suppose he is bomb-proof. About two or three days after, I was told by Dr. I. N. Love that the Missouri Railroad Company would not pay me, as he was their regular physician. My services for attending the man were reasonably worth this bill sued on.”

At the close of the plaintiff's testimony, the defendant corporation requested an instruction that there could be no recovery against it, which the court refused to give, and this defendant excepted.

The evidence on the part of the defendants was as follows: Charles M. Allen testified: “I am superintendent of the Missouri Railroad Company. My duties are to attend to the running of its cars, the employment and discharge of its drivers and conductors. The Missouri Railroad Company has a regular medical director, Dr. I. N. Love, and when an accident happens, I am instructed to send for him. Have never employed any other physician in case of accidents, except on emergency. In a case of emergency I employed Dr. Van Studdiford, as I supposed Dr. Love was out of town. The Missouri Railroad Company subsequently paid him. I suppose I have a discretion in the matter. I mean by discretion, that if I employed a physician the company would pay him. I did not employ Dr. McCarthy. After he had dressed Deasey's wound, he asked me if he should attend him. I said, ‘If you want to, but the company will not pay you.’ I notified Dr. Love of the accident the same day; believe Dr. Vastine was once engaged also, on emergency, by me or some other employé, and the company had paid him.”

Wm. D. Henry testified as follows: “I am secretary of defendant Missouri Railroad Company. It has a regular medical director. Dr. I. N. Love is the regular medical director of the company. His duty is to attend all cases of accidents happening on the line of the road. The employés of the road are instructed to call him in in all cases of accidents. He has been sometimes called in by Allen, the superintendent, or other employes.”

Dr. I. N. Love testified as follows: “I am the regular medical director of the Missouri Railroad Company. I have entire charge of all cases of accidents on the line of the Missouri Railroad Company. I called to see Deasey shortly after the accident. I left a prescription for him. Also informed Dr. McCarthy that I called to see Deasey on behalf of the railroad company.”

This was all the evidence offered. No exceptions were taken to any rulings upon the admissibility of evidence. No instructions were asked at the close of the whole case on either side; but the court of its own motion gave the following instruction to the jury, the defendants reserving an exception: “If the jury find from the evidence that defendant Allen, as superintendent, was authorized by the defendant company to employ physicians on behalf of said company, to attend any person injured by the said company, and that said company had ratified such employments and paid such physicians so employed; and if the jury further find, from the evidence, that plaintiff rendered professional services to said Deasey at request of said Allen, as such superintendent, then the jury will find for plaintiff in such sum as they believe from the evidence to be the reasonable value of the services so rendered by the plaintiff, after such...