Columbus & Greenville Ry. Co. v. Mississippi Clinic

• Citation: 120 So. 203,153 Miss. 29
• Decision Date: 04 February 1929
• Docket Number: 27589
• Parties: COLUMBUS & GREENVILLE RY. CO. v. MISSISSIPPI CLINIC. [*]
• Court: United States State Supreme Court of Mississippi

120 So. 203

153 Miss. 29

COLUMBUS & GREENVILLE RY. CO. v. MISSISSIPPI CLINIC. ^[*]

No. 27589

Supreme Court of Mississippi

February 4, 1929

Division B

1 PLEADING. Defendant, sued for surgical and medical services held entitled to "bill of particulars" showing each visit by doctor and charge therefor (Hemingway's Code 1927, section 531).

In action for surgical and medical services rendered, where one count was for professional services rendered person named including setting fractured left thigh and after attention amounting to one hundred and fifty dollars, and the other count was for accompanying person to hospital and suturing and dressing wounds twenty-five dollars, for calls attending patient at hospital twenty-four dollars and for removal of stitches at hospital one dollar, defendant was entitled to bill of particulars, and anything less than an itemized statement setting out each visit made by doctor and charge therefor would not be a "bill of particulars," under Code 1906, section 734 (Hemingway's Code 1927, section 531.)

2. PLEADING. In action for surgical and medical services, court erred in admitting physician's testimony in absence of itemized account (Hemingway's Code 1927, section 531).

In action against railroad company for medical and surgical services rendered persons injured in collision, court erred in admitting testimony of physician, in absence of itemized account setting out each visit made by doctor and charge therefor, under Code 1906, section 734 (Hemingway's Code 1927, section 531).

3. PRINCIPAL AND AGENT. Neither agency for railroad of one requesting physicians to attend persons injured by train nor scope of agency could be proved by agent's declaration.

In action for medical and surgical services rendered to persons injured by train, plaintiffs could not prove that one requesting them to attend injured persons was claim agent of railroad company, nor the scope of his agency, by declaration of agent.

4 RAILROADS. Railroad was not liable to physician requested by agent to attend injured persons for services rendered beyond emergency, in absence of contract.

Railroad company was not liable for services of physician, attending persons injured by train at request of railroad's claim agent, rendered beyond emergency, where physician attended one person for six weeks after his injury and another for a shorter time, unless physician had contract with railroad company, either expressed or implied, covering such services.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS, Judge.

Two actions commenced in a justice of the peace court by the Mississippi Clinic against the Columbus & Greenville Railway Company. Plaintiff recovered judgments in the justice court, and on appeal to the circuit court the cases were consolidated and tried together, and from a judgment for plaintiff defendant appeals. Reversed and remanded.

Reversed and remanded.

Gardner, Odom & Gardner and Alfred Stoner, for appellant.

It was contended by defendant that T. M. Curry was not shown by the evidence, to have any authority to employ physicians, and that, even though authority be imputed to him to make such employment in cases of emergency, the right of the physician to demand compensation for his services ended with the ending of the emergency.

It was shown that Dr. Yates treated the patients for a long time after the exigency ended and sued the railroad company for the entire account.

According to the earlier authorities the officers of corporations had no authority to employ physicians, even in emergency, but the trend of the modern authorities is to the effect that such authority will be imputed to agents of corporations in cases of emergency, upon the ground of expediency, provided that it be shown that the contract of employment was made by the highest official "on the ground" at the time of the accident. However, none of the courts, insofar as we have been able to find, have carried the liability further than the end of the emergency. After the emergency ends all of the authorities absolve the railroad companies from liability to physicians for further treatments.

In the case at bar the accounts sued on were not itemized and it was, therefore, impossible to tell from the accounts, the extent of the liability of the defendant, if any. It will be observed that one account makes charge for setting a fractured leg and "after attention" but does not state the amount charged for setting the leg, nor for "after attention," and the other account makes charges for dressing and suturing wounds, plus twenty-four dollars for calls at the hospital and plus one dollar for removing stitches. Dr. Yates testified that he called to see the patients at least twice a day for two or three weeks, and that in ordinary cases he charged three dollars a visit but did not do so in this instance. We submit that certainly the accounts should be itemized, since plaintiff, if he recover at all, must recover on a quantum meruit.

The accounts, not being itemized, no testimony relative to them was admissible. Finch v. Brewer, 133 Miss. 9, 96 So. 402; Wolff v. Hopkins (Miss.), 111 So. 290.

The testimony upon which plaintiff relied to establish his contention that Mr. Curry was an agent of the defendant was clearly incompetent. Over the objection of the defendant, Dr. Yates was permitted to testify that Mr. Curry said that he was claim agent for the defendant. Walters v. Stonewall Cotton Mills, 101 So. 495; Dunlop v. Hearn, 37 Miss. 471; Atwood v. Meridit, 37 Miss. 635. See, also, So. Ry. Co. v. Brister et al., 79 Miss. 761, 31 So. 440.

In the last-cited authority the railroad company was held liable for emergency treatment on the ground that the physician was employed by the station agent acting on special instructions from the train master, the station agent having gotten his special authority by telegraph, and it was also proved that the train master had authority to employ physicians in cases of emergency, and that the train master acted under authority from the general superintendent. 1 Elliott on Railroads, secs. 260, 411 et seq.; Williams v. Brickell, 37 Miss. 682, 75 Am. Dec. 88.

With reference to the right of an agent of a railroad company to employ a physician in cases of an emergency, see Atlantic Refining Co. v. Leffingwell, 34 L. R. A. (N. S.) 351, and annotations. Bedford Belt Ry. Co. v. McDonald (Ind.), 60 Am. St. Rep. 172; Salter v. Nebraska Tel. Co., 13 L. R. A. (N. S.) 545.

Kimbrough, Tyson & Kimbrough, for appellee.

One of the contentions of appellant is that T. M. Curry was not shown by the evidence to have been the claim agent of the appellant railroad company, and this contention apparently assumes that the only testimony in the record proving or tending to prove this fact was that of Dr. Yates, in which he stated that "he has told me," in response to the question, "You don't know really of your own knowledge that he is claim agent for them?" If this was the only testimony in the record as to Mr. Curry's agency, then the contention of the appellant railroad company that agency has not been proven might be correct, since, of course, agency can never be proven by the declaration alone of the agent himself, but this rule so far as it applies to the admissibility and competency of such declaration in evidence is qualified to the extent that if there is other competent evidence in the record proving or tending to prove such agency, the declaration of the agent as to his agency is admissible. This was the situation in the case at bar, since the agency of Mr. Curry was proven clearly and unequivocally by further positive statements of Dr. Yates to that effect and entirely independent of Curry's declaration that he was such agent.

Another contention of appellant is that even if Curry was the agent of the railway company, yet, nevertheless he did not have authority to employ Dr. Yates, because he, Curry, was not shown to be the "highest authority on the ground," and to sustain the contention that this is the rule in Mississippi, the case of So. Ry. Co. v. Brister, 79 Miss. 761, is cited. This case did not discuss the question of whether or not it was necessary for the highest authority available to authorize surgical or medical services in order to impose liability upon the railroad company and consequently established no rule on this subject in Mississippi. The case was decided upon the presumed fact that a train master acting as a division or local superintendent had sufficient authority. No question was raised as to whether or not he was the highest authority available or whether it was necessary for him to be such in order to fix liability upon the railroad company. The court did not consider the question of whether if he had not been the highest authority, the liability of the railroad company would or would not have existed.

Appellant also contends that even if Curry had authority to employ Dr. Yates that the period of employment could not have extended beyond the period of "the emergency" and that consequently the railroad company was in no event liable for that part of the services rendered by Dr. Yates during a certain period of time covered by his "after attendance" upon the patients. But see 21 R. C. L. 414, par. 56; Burnette v. St. L., I. M. & So. R. R., 16 L. R. A. (N. S.), 1081; Reynolds v. Chicago, etc., R. R. Co., 90 S.W. 100.

Appellants contend further that it was error to admit any evidence as to the subject of the suit because it consisted of accounts and as such were not properly itemized. We submit that the accounts were sufficiently itemized because the services rendered were rendered under an express oral contract, and because they could not be...