Bonnette v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 13 July 1908
• Citation: 112 S.W. 220
• Parties: BONNETTE v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Arkansas Supreme Court

112 S.W. 220

BONNETTE v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Arkansas.

July 13, 1908.

Appeal from Circuit Court, Drew County; H. W. Wells, Judge.

Action by J. V. Bonnette against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment of dismissal after sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

The appellant sued the appellee, alleging in his complaint: "That on or about the 15th day of January, 1907, the said defendant, the St. Louis, Iron Mountain & Southern Railway Company, by its employés operating and running a locomotive engine or train of cars over its railroad track through Montrose, a station of said line of its railroad, then and there ran or backed said locomotive, engine, or train of cars against and over one Fred Ross, a stranger, and then and there, and thereby, seriously or fatally injured him by then and there crushing, under its wheels, both thigh bones, etc.; that the injury occurred in the nighttime, and that it was of a character so serious and that the emergency was so great as to require immediate surgical or medical attention; that the necessity and emergency of the occasion authorized the conductor to contract for medical services; that the said station of Montrose is many miles distant from the principal offices of the defendant and from the residences of its principal officers, and that the conductor in charge of said train, and as the agent of the defendant, employed the plaintiff, who as aforesaid was a resident surgeon at said station, to render professional services to the said Ross, and that he, in accordance with said request and employment, rendered the said Ross surgical aid and attention; that plaintiff, assisted by Dr. W. H. Shipman, acting at the request and under the employment of said conductor, took charge of said patient, Ross; that it became and was necessary to amputate both thighs; that the plaintiff, assisted by Dr. W. H. Shipman, performed said operations or amputations; that services so rendered, and money expended for unskilled labor, medicine, etc., were of the value of $124.50; that said conductor was the highest representative of the defendant and superior officer present when the accident or injury occurred, and when said employment was made; that the defendant refused and still refuses to pay said claim notwithstanding repeated demands have been made therefor, wherefore plaintiff prays judgment," etc. The appellee demurred as follows: "Comes the defendant, the St. Louis, Iron Mountain & Southern Railway Company, by its attorney, E. A. Bolton, and demurs to the complaint herein, and for cause states that said complaint fails to state facts sufficient to constitute a cause of action against the defendant herein; that said complaint fails to state that the conductor of freight train 156 had any authority to contract for the services alleged to have been contracted for with plaintiff herein, and fails to state any facts that would bind defendant for the contract of said conductor in employing the plaintiff herein; that said complaint is otherwise informal and insufficient in law to constitute a cause of action against the defendant." The court sustained the demurrer and dismissed the complaint, and this appeal followed.

R. W. Wilson, for appellant. T. M. Mehaffy and J. E. Williams, for appellee.

WOOD, J. (after stating the facts as above).

This court in Railway Company v. Loughbridge, 65 Ark. 300, 45 S. W. 907, held (quoting syllabus): "Where a railway employé is injured while in the discharge of his duties at a point distant from the company's chief offices, and there is urgent necessity for the employment of a surgeon to render professional services, the conductor, if he is the highest agent of the company on the ground, has authority to bind the company by the employment of a surgeon to render the services required by the emergency." This is the language of the court in Railway v. Hoover, 53 Ark. 377, 13 S. W. 1092, a case in which a doctor sued the railway company for surgical attendance upon and board of a passenger injured by the company's train. In the latter case the court held the company not...