Borgeas v. Oregon Short Line R. Co.
| Decision Date | 18 May 1925 |
| Docket Number | 5684. |
| Citation | 236 P. 1069,73 Mont. 407 |
| Parties | BORGEAS v. OREGON SHORT LINE R. CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Beaverhead County; Joseph C. Smith Judge.
Action by Carl Borgeas against the Oregon. Short Line Railroad Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.
T. E Gilbert, of Dillon, and John E. Corette, of Butte, for appellants.
J. E Kelly, of Dillon, for respondent.
The complaint herein alleged that the defendant railroad company, in the operation, maintenance, and repair of its line, employs a great number of men, and that the work is necessarily hazardous and employés are often injured. It then alleges that for the purpose of caring for sick and injured employés, the company secures the services of a hospital at Pocatello, Idaho, with competent physicians and surgeons, and also employs local physicians and surgeons, and that for the purpose of reimbursing itself it deducts 75 cents per month from the wages of each employé. It then alleges that plaintiff was employed by said company as a section hand at Apex, Mont., where, in the month of December, 1922, he was injured, but continued to work up to the latter part of January, 1923, when, by reason of the injury, the femur bone of his right leg broke; that plaintiff thereupon reported his condition and applied to defendant Stephan, the local physician of the defendant company, for hospital accommodations and surgical treatment, to which he was entitled. Plaintiff then alleges that the defendants "then and there so negligently, carelessly, and unskillfully behaved and conducted themselves" that the aid was denied and refused him, "in that the defendants directed and dispatched the plaintiff, against his will, wishes, and over his protest" to the Murray Hospital at Butte, without supplying plaintiff with the means to pay, and thereafter, within 10 days, he was compelled to leave the hospital for want of means, and that on his return home, 20 miles from Dillon, Dr. Stephan refused to visit him.
The complaint further alleges that plaintiff was a poor man, unable to secure assistance elsewhere, and that, had defendants given him the attention to which he was entitled, he would have been restored to his former condition as a robust, able-bodied man, but that by reason of the failure of defendants he was left with a shortened and diseased limb, to his damage in the sum of $30,000, and caused great pain and suffering to his damage in the sum of $5,000; that the treatment he was entitled to was of the reasonable value of $2,000; that his bill at the Murray Hospital was $98, and that none of these sums has been paid.
The defendants filed separate motions to require plaintiff to separately state and number the several alleged causes of action, and, therein, moved to strike certain portions of the complaint. The motion was overruled. Defendants then filed separate demurrers to the complaint, which were overruled. Thereupon, by separate answers, the defendants admitted the maintenance of a hospital department and securing of the services of a hospital and physicians and surgeons, and the deduction of the amount alleged for such maintenance; admitted that plaintiff was in the employ of the company at the time of the injury, and denied the remaining allegations of the complaint. The defendant company, in its separate answer, then alleged as an affirmative defense that the hospital department is maintained exclusively for the benefit of the employés, without profit to the company, and that any injured employé is entitled to such benefit, except where the injury results from drunkenness, fights, brawls, or unlawful conduct, and, in case of sickness, except for venereal diseases and ailments resulting from intemperance or vicious habits. It then alleges that the only duty of the company is to exercise reasonable care in the selection of reasonably competent physicians and surgeons, and that it has performed that duty.
On the trial defendants objected to the introduction of any evidence; at the close of plaintiff's case they moved for a judgment of nonsuit, and at the close of all of the evidence moved for a directed verdict. The ruling of the court was adverse to defendants in each instance.
The court, over the objections of the defendants, gave to the jury the following instruction:
"The court instructs the jury that if they believe from the evidence that the defendants, or either of them, was obligated to furnish plaintiff medical assistance, and, being so obligated, either knowingly or negligently failed to so furnish such assistance as charged in plaintiff's complaint, and that the plaintiff has suffered damage by reason thereof, then in estimating the damage of the plaintiff in this case, you are to take into consideration the physical pain and suffering of the plaintiff and which was caused by such failure, if any such has been shown by the evidence; the amount of his loss in earnings to this date, if any, and which was caused by such failure; and the impairment of his ability to earn money in the future, if any has been shown, and which was caused by said failure."
Following this instruction, the jury returned a verdict for the plaintiff and against the defendants jointly for the sum of $35,000, and judgment was duly entered thereon. From this judgment the defendants have appealed. They make 22 specifications of error. We deem it unnecessary to discuss all of these assignments; except in respect to the matters for which the judgment is reversed, we find no substantial error in the record. The specifications discussed will sufficiently appear from our treatment of them.
(a) As disclosed by the pleadings, this is an action in contract, for the breach thereof. While the defendant Stephan was in the employ of the defendant company, he was not an "employé" in the ordinary sense of the term, as used in relation to master and servant or principal and agent. In the ordinary personal injury cases arising out of the negligent act or omission of an employé, the negligent employé may be joined with his employer in an action for damages, under the rule of respondeat superior. Knuckey v. Butte Electric Ry. Co., 41 Mont. 314, 109 P. 979. The act of the servant becomes the act of the master, who has the right to control the manner in which he discharges his duties, and, when injury results, they are joint tort-feasors. But the relation of master and servant, or of principal and agent, does not exist between a railroad company as employer, and a surgeon employed to treat an injured employé, the reason being that the employer has no right to control the surgeon in the treatment of the case ( Quinn v. Kansas City M. & B. Ry. Co., 94 Tenn. 713, 30 S.W. 1036, 28 L. R. A. 552, 45 Am. St. Rep. 767; South Florida Ry. Co. v. Price, 32 Fla. 46, 13 So.
638), and the rule of respondeat superior does not apply in cases of such employment. 4 Thompson on Negligence, p. 111. Again, plaintiff's contract, if any, is with the defendant company, and with this contract defendant Stephan had nothing to do; whatever his contract with the company there was no privity of contract between him and the plaintiff.
If defendant Stephan was liable in any manner to plaintiff, it was for malpractice or carelessness on his part in the treatment of plaintiff as a patient, either the company's or his own, in an action not arising out of plaintiff's contract with the defendant company, and the two could not be joined, as was done in this case. Section 9130, Rev. Codes 1921; Cummings v. Reins Copper Co., 40 Mont. 599, 107 P. 904.
It follows that the court erred in overruling the separate demurrer of the defendant Stephan.
(b) The demurrer of the defendant company sets out four grounds; three of these cover the same general objections to the complaint on which this defendant bases its contention that the complaint is (1) uncertain; (2) ambiguous; and (3) unintelligible, in that it cannot be ascertained therefrom in what manner the company breached its contract, and that it cannot be ascertained therefrom whether, in addition to damages for the breach of the contract, plaintiff seeks to recover, as against the defendant Stephan, damages for unskillful treatment and malpractice.
On these contentions we are of the opinion that the complaint is sufficiently clear and intelligible in stating a cause of action for the breach of its contract to furnish the aid to which the plaintiff was entitled or, having furnished such aid initially, for failure to furnish the skilled and careful treatment required. The allegations as to the manner of treatment go, not to the cause of action, but to the element of damage suffered.
If the defendant company, being in duty bound to furnish skilled and careful surgeons, by reason of lack of reasonable care in its selection, or the retention of a surgeon after it had been brought to the attention of the officers of the company that such a one through lack of skill or by reason of personal habits has become unfit to serve in that capacity, provides an injured employé with such unskillful or careless surgeon, then it would be liable for the carelessness or malpractice of the surgeon, and the allegation of damage therefrom may properly appear in the complaint. 4 Thompson on Negligence, § 3842; Wabash Ry. Co. v. Kelley, 153 Ind. 119, 52 N.E. 152, 54 N.E. 752.
The fourth ground of demurrer is the general one that the complaint does not state facts sufficient to constitute a cause of action. It states "in general and concise language" the facts constituting a contract imposing...
To continue reading
Request your trial