Galveston, H. & S. A. Ry. Co. v. Allen

• Decision Date: 11 April 1906
• Citation: 94 S.W. 417
• Parties: GALVESTON, H. & S. A. RY. CO. v. ALLEN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

94 S.W. 417

GALVESTON, H. & S. A. RY. CO. v. ALLEN et al.^*

Court of Civil Appeals of Texas.

April 11, 1906.

Rehearing Denied May 9, 1906.

Appeal from District Court, Fayette County; L. W. Moore, Judge.

Action by G. W. Allen and another against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed and rendered.

This suit was brought by appellees on September 3, 1904, against appellant to recover the sum of $1,650. The allegations in plaintiffs' petition, upon which the recovery is sought, are substantially as follows: That on the 22d day of March, 1904, the defendant acting through its local surgeon, Dr. Johnson, and through its station agent, Mr. Meyer at Flatonia, employed and engaged plaintiffs to perform a surgical operation upon Barton E. Gardner, a young man whose right leg and left foot had been crushed by one of defendant's trains; that in accordance with the instructions and requests of defendant's local surgeon, who, in such matters, was its duly authorized agent and representative, and in accordance with the instructions and request of its agent, Mr. Meyer, plaintiffs had the injured man brought to their hospital where they amputated his right leg and left foot. That the operation was requested to be performed by Dr. Johnson, the local surgeon, in whose judgment it was absolutely necessary that the amputation of Gardner's leg and foot should be made; that plaintiffs, and also Dr. Kaiser, another local surgeon of defendant, concurred in the judgment of Dr. Johnson; that Dr. Johnson administered the chloroform to the patient, while Dr. Kaiser held the limb, during the operation; that the plaintiff Dr. G. W. Allen, Sr., with his surgical instruments amputated both the right leg and the left foot, while the plaintiff, Dr. G. W. Allen, Jr., performed the other duties necessary in order to properly perform the operation; that after the operation was performed, the patient was kept in the hospital of plaintiffs for 21 days, and then discharged as convalescent; that the services of the plaintiffs were requested by the defendant through its proper local agent, and that by said employment the defendant agreed and became liable to pay plaintiffs the sum due for the performance of the operation, and for the board, hospital fees, attention and nursing required after the operation until the patient was discharged; that the operation is reasonably worth the sum of $1,500 and the board, attention, nursing, and hospital fees the sum of $150, aggregating $1,650.

The defendant answered by a general demurrer, a general denial, and, specially, as follows: "Defendant denies that it or any of its agents for it having authority to do so, either employed, or contracted with plaintiffs for the services alleged in their petition; that Dr. Johnson and Mr. Meyer are not and never have been authorized or employed by defendant, or any of its officials having power to do so, to make contracts of the nature alleged by plaintiffs; that Dr. Johnson, Mr. Meyer and H. F. Anderson were not, nor was either of them ever, at any time authorized and empowered by defendant to engage and employ plaintiffs as alleged in their petition; that if Dr. Johnson, Mr. Meyer, or H. F. Anderson, or either of them, employed and engaged plaintiffs as alleged by them in their petition, then their acts or the acts of either of them, were and are beyond the scope of their authority, or the authority of either of them, and not binding on the defendant." The special answer above shown was duly verified. The case was tried before a jury, who returned a verdict in favor of plaintiffs for $575, upon which the judgment appealed from was rendered.

Baker, Botts, Parker & Garwood and Brown & Lane, for appellant. J. F. Wolters and J. T. Duncan, for appellee.

NEILL, J. (after stating the facts).

As necessary to the consideration of the assignments of error, we deem it proper to say that the uncontradicted evidence shows that on March 22, 1904, Barton E. Gardner, a young soldier of the United States Army, who was a passenger, got out of one of appellant's trains standing at the depot at Flatonia, and in some way (presumably by being run over by the train) had one of his legs and a part of one foot crushed. No responsibility or liability is shown, or claimed by appellees, of the appellant for the act which resulted in the injury of the young man. He had been a passenger, had in some way left the train, and was simply found in his injured condition at appellant's depot in Flatonia. No facts appear that tend to show primarily that the law imposed upon the railway company any duty or obligation to give the young man, or any one else found in his condition at its depot, under the same circumstances, surgical aid or treatment, or to care for him while recovering from his injuries. That if any such duties rested upon appellant they were self-imposed by contract, as claimed by appellees in their petition.

With this preliminary statement in view, we will consider the assignments of error: (1) The subject of the second assignment of error is the refusal of the court to give special charge No. 1 requested by appellant's counsel which is as follows: "No evidence has been introduced that would authorize you to find the defendant company liable to plaintiffs, nor is it claimed that there is any liability except upon an express contract made between plaintiffs and defendant company; and upon this branch of the case, you are instructed that plaintiffs cannot recover of defendant, unless the testimony offered shows an express contract made between plaintiffs and the defendant company by some one on the part of the company having authority to make such a contract; and inasmuch as no testimony has been introduced which shows such authority, you are directed to return a verdict for defendant." The assignment is followed by this proposition: "Plaintiffs having brought their action to recover by reason of an express contract which they alleged was made between them and the defendant company, it acting in the making of same through certain of its agents, and the proof wholly failing to show the authority of said agents to make such contract and there being no proof to sustain the allegations on the part of plaintiffs, it was the duty of the trial judge to instruct the jury to return a verdict for defendant."

It will be observed from our statement of the allegations in plaintiffs' petition that it grounds their cause of action on an express contract, alleged to have been made by defendant acting by or through its authorized agents. No liability is claimed to flow from...