Gray v. Lumpkin & Thomas

• Decision Date: 05 July 1913
• Citation: 159 S.W. 880
• Court: Texas Court of Appeals
• Parties: GRAY v. LUMPKIN & THOMAS.

Page 880

159 S.W. 880

GRAY v. LUMPKIN & THOMAS.

Court of Civil Appeals of Texas. Amarillo.

July 5, 1913.

Rehearing Denied October 11, 1913.

Appeal from Potter County Court; W. M. Jeter, Judge.

Action by Lumpkin & Thomas against W. H. Gray. Judgment for plaintiffs, and defendant appeals. Affirmed.

Lloyd Fletcher, of Amarillo, for appellant. Hugh L. Umphres, of Amarillo, for appellees.

HUFF, C. J.

On a former day of this court we dismissed the case because the transcript and appeal bond from the justice and county courts was not in the transcript in this case. Appellant, upon motion for rehearing and by petition for writ of certiorari, brought up duly certified copy of the transcript and appeal bond, and upon hearing we granted the motion for rehearing and ordered the appeal bond and transcript so attached to his petition to be filed as a part of the record in this case and ordered that the case be taken upon the original submission.

One Boatman, an employé on W. H. Gray's (appellant's) ranch, had his leg broken by a horse falling on it. A Dr. Roland, a local physician, was called to the ranch and gave temporary treatment, when appellant decided to send the injured man to St. Anthony's Sanitarium, at Amarillo, for further care and treatment. For that purpose he placed the injured man in charge of Henry Kerr, another employé, to carry him to St. Anthony's Sanitarium, and at the same time wrote and delivered a letter to Kerr, addressed to doctors at Amarillo, together with a letter written by Dr. Roland. The letters appear to have been lost, and the contents of the letters are not shown by the evidence. One was written by appellant Gray and the other by Dr. Roland, at the request of appellant, for the purpose of showing what had been done and to be delivered to the doctor taking charge of the case. There appears to be no dispute in the testimony but that appellant intended and did pay for the care of Boatman at the sanitarium and paid other expenses, and that it was his purpose to pay the doctor's bill, provided, as contended by appellant, the doctor addressed in the letter attended the case. The appellees, Lumpkin & Thomas, treated the case and charged $110 for their services, which the evidence uncontrovertedly shows to have been reasonable. The question in this case is narrowed practically to one question of fact, whether the appellant employed or authorized Kerr to employ appellees. Appellant testified by deposition that he addressed the letter to Drs. Walker and Johnston, authorizing either to treat the case, and had they done so he would have paid the bill. The evidence by appellees and by appellant appears that Dr. Thomas was at the sanitarium when the patient arrived and that as an act of humanity gave a hypodermic to relieve his present suffering. He had been brought overland in a wagon some distance from the ranch to the sanitarium. Dr. Walker was not at the sanitarium at the time of the arrival of the patient. The letter by Gray was on a slip of paper which was mislaid. Dr. Thomas, after administering temporary relief, phoned Dr. Walker. Some one at that time told Dr. Thomas, and it appears also such statement was made in the presence of Dr. Lumpkin at the time, that the letter in question was addressed to Drs. Walker, Johnston, or Thomas, and upon such information they proceeded to treat or operate upon Boatman. Dr. Walker came to the sanitarium and assisted in the operation by administering an anæsthetic. Dr. Walker testified that the letter from Dr. Roland was addressed to Drs. Walker, Johnston, or Thomas. This letter was written at the request of Gray and sent by him with Mr. Kerr. The jury were also warranted in finding from the testimony that Kerr, who brought Boatman in from the ranch for treatment and care, requested Lumpkin & Thomas to treat the case. The doctors at the time evidently understood that appellant had requested either of the three doctors to treat the case. Dr. Walker evidently so understood the letter and left the case with Dr. Thomas, who had first ministered to the injury.

The master as a rule is not, in the absence of an agreement or some...