Bonnette v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 13 July 1908
• Citation: 112 S.W. 220,87 Ark. 197
• Parties: BONNETTE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

112 S.W. 220

87 Ark. 197

BONNETTE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

July 13, 1908

Appeal from Drew Circuit Court; Henry W. Wells, Judge; reversed.

STATEMENT BY THE COURT.

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 employees 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 night time, 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 one hundred and twenty-four and 50-100 dollars ($ 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.

Judgment reversed and cause remanded.

R. W. Wilson, for appellant.

In view of the remoteness of the place at which the injury occurred, the lateness of the hour, the necessity and emergency of the occasion and the fact that there was no one present higher in authority than the conductor, he was authorized to contract for the necessary medical and surgical attention, and the company is bound thereby. 98 Ind. 358; 9 L.R.A. 1234; 65 Ark. 300; 28 Mich. 298; 29 Ind. 420; 18 Kan. 458.

T. M. Mehaffy and J. E. Williams, for appellee.

In ordinary cases a conductor of a railway company is not authorized to bind the company by a contract for surgical attendance upon a passenger or employee injured in the operation of a train. 53 Ark. 379. And such cases cited by appellant, as hold that he had such authority, grow out of injuries to employees or passengers, and the existence of an emergency demanding immediate action. 98 Ind. 358; 65 Ark. 300; 28 Mich. 298, etc. Here the injured party was neither employee nor passenger, but a stranger injured without fault or negligence on the part of appellee. There was no obligation nor duty resting upon the company, and the conductor's act can not bind it. 3 Am. & Eng. R. Cas. (N.S.) 771; 72 P. 281; 16 Am. & Eng. R. Cas. (N.S.) 369; 44 Id. 461; 20 L.R.A. 695; 6 Rapalje & Mack's Digest, 391-398; 47 Ark. 239.

OPINION

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

This court in Arkansas Southern Rd. Co. v. Loughridge, 65 Ark. 300, 45 S.W. 907, held (quoting syllabus): "Where a railway employee 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 St. Louis, A. & T. R Co. 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 liable, for the reason that "the emergency, which alone could have given the conductor implied authority." had terminated before the doctor was employed. The...