Haggerty v. St. Louis, K. & N. W. R. Co.

• Decision Date: 14 April 1903
• Citation: 100 Mo. App. 424,74 S.W. 456
• Court: Missouri Court of Appeals
• Parties: HAGGERTY v. ST. LOUIS, K. & N. W. R. CO.<SMALL><SUP>*</SUP></SMALL>

74 S.W. 456

100 Mo. App. 424

HAGGERTY v. ST. LOUIS, K. & N. W. R. CO.^*

Court of Appeals at St. Louis, Missouri.

April 14, 1903.

RAILROAD RELIEF DEPARTMENT—CHARITIES —INJURIES TO EMPLOYÉS—FURNISHING SURGICAL ATTENTION—MALPRACTICE—RESPONDEAT SUPERIOR—CARE REQUIRED—AUTHORITY OF AGENT—QUESTION FOR JURY—PETITION—CLERICAL ERRORS—DEFECTS CURED BY VERDICT.

1. In an action by a member of the railroad employés' relief department for malpractice of physicians furnished by defendant to treat plaintiff for an injury, a petition alleging the defendant obligated itself to furnish competent and skillful physicians to attend injured employés who were members of the relief department; that in disregard of such obligation it furnished unskillful surgeons, who treated plaintiff in a negligent manner, to his detriment; and that plaintiff submitted to treatment by such physicians on account of the contract between him and defendant for surgical attendance by virtue of his membership in the relief department—was not objectionable on the ground that such allegations were mere conclusions of law.

2. Where plaintiff sued a railroad company for injuries sustained by negligence of physicians furnished by the railroad's relief department in treating him for an injury, the word "proper," in an allegation of the petition that, in consequence of such negligence in furnishing plaintiff "proper medical and surgical treatment and physicians and surgeons," and on account of their carelessness and inefficiency, plaintiff's leg, which had been broken, was crooked, and weak, and nearly useless, etc., was a clerical error, and should be read "improper."

3. Failure of the petition to allege a fact without which the jury could not have rendered their verdict is cured by the verdict, if the existence of such fact can be gathered by reasonable intendment from facts definitely averred.

4. Plaintiff, who was a member of a railroad relief department, on sustaining a fracture of the leg, was given temporary treatment by S. pending the arrival of defendant's physician, B. On arrival, B. examined the fracture, approved the treatment of S., and instructed the latter to continue treating plaintiff and send his bill to defendant. In an action against defendant for the negligent treatment of plaintiff's injury, the petition charged that plaintiff was treated by both B. and S., and that his condition resulted from the negligence of both. B. testified that he visited plaintiff on numerous occasions, and admitted that, on plaintiff's expressing dissatisfaction with the setting of his limb and desiring it reset, he advised against such operation, but stated that his visits to plaintiff and consultations with S. were merely as medical examiner of defendant's relief department, and to ascertain how long plaintiff was entitled to benefits, and when he was able to resume work. Held, that such facts warranted the finding that both B. and S. were attending physicians in the treatment of plaintiff.

5. In an action against a railroad for the negligence of physicians furnished by its relief department, the answer alleged that the relief department had the option to furnish members surgical attention, when injured, or refrain from doing so. The department's examining physician testified that, while it was customary to pay bills for medical treatment of members, such payment was made only when members were disabled by accident, and that if the physician was satisfied that the member was receiving unskillful treatment the fact would be reported to the department, which could advise, but could not change the physician against the patient's will. Medical examiners were authorized to certify bills for surgical treatment, and such examiner employed S. to treat plaintiff, whose bill for services was certified and paid by defendant. Held, that whether such examining physician had the authority to employ S. to treat plaintiff was for the jury.

6. A railroad's relief department, supported by sums of money deducted from the wages of employés, and intended for the benefit of employés who became sick or injured while in the company's service, but the benefits of which such employés are not entitled to receive except on condition of relieving the company from liability for negligence in causing the injury, is not a charity so as to relieve the department from negligence in selecting a physician to treat an injured employé who was a member of such department.

7. Where a railroad's relief department was authorized to furnish surgical attention to an injured employé entitled to the benefits of such department, but was not bound to do so, the company was not liable, under the doctrine of respondent superior, for the malpractice or negligence of a surgeon so furnished, but was only bound for the exercise of reasonable care in selecting a surgeon of average skill.

Appeal from Circuit Court, Lewis County; E. R. McKee, Judge.

Action by John Haggerty against the St. Louis, Keokuk & Northwestern Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

H. H. Trimble and P. Trimble, for appellant. Jery M. Jeffries, for respondent.

Statement of Facts.

GOODE, J.

In 1898, and prior thereto, plaintiff was in the employ of the defendant railroad company as section foreman, and on March 10th of that year, while in the discharge of his duty, got his right leg broken a few inches above the ankle joint. He was taken to his home in the city of Canton, in Lewis county—the accident having occurred a short distance away—and Dr. Ben H. Smith called to see him, in response to the request of Jesse Downs, one of the section gang. Plaintiff did not send for Dr. Smith, and, according to his testimony, never knew why the doctor called on him. Accepting as true the testimony in behalf of the plaintiff, that physician set his leg, inclosed it in splints and bandages, and remarked that the treatment administered "would do until the railroad physician came." Smith called and cared for the patient a time or two before the railroad physician arrived, who reached Canton the night of the day following the accident. This railroad doctor was J. J. Bourne, who resided in Hannibal, and was one of the medical examiners of the Burlington Voluntary Relief Department, an organization which will be described later. When Dr. Bourne first called on Haggerty, Dr. Smith was not present, but Bourne had him telephoned for, and when he came he took the dressing from Haggerty's limb at Bourne's request. The latter examined it, and said the treatment was all right. The facts in regard to Dr. Bourne's connection with the case, as well as the employment of Dr. Smith, were strongly disputed, and the evidence on those issues is very contradictory. We shall state it in accordance with the testimony of the witnesses for the plaintiff, as we are bound to do in considering the contention of the defendant that there was no evidence that Bourne treated the case at all, or that he employed Smith to treat it. As stated above, the testimony is that Smith gave the wound first attention, and said it would do until the physician of the company arrived. Bourne and Haggerty both testified that the former examined the leg at Haggerty's request; but Haggerty says that Bourne approved the treatment, and then turned the case over to Smith. On this point Florence Wright, who was present when Dr. Bourne first called, testified the latter said he could save the limb, and told Haggerty he ought to be out in three or four weeks; further, that when Dr. Smith first dressed the leg he said to Haggerty that he thought he (Haggerty) "would rest very well until morning, until the railroad doctor came," and that if he did not come that he (Smith) would come down and do something for Haggerty until the railroad doctor got there. She also testified to being present when the railroad doctor fixed the leg, and that Haggerty did some awful struggling; further, that she heard Smith say, during either his first or second visit, that the case would have to be given to the railroad doctor. Dr. Smith made out his bill against the relief department, and the department paid it. He did this by direction of Dr. Bourne, and both physicians testified that Bourne told Smith on his first visit to treat the case and the department would pay him. Smith continued to wait on Haggerty until about the 1st of August, when the latter resumed work for the railroad company, he swears by the advice of both doctors and by the command of Lariston, an officer of the railroad company, but just what officer we are unable to discover from the evidence. Haggerty testified that Dr. Bourne told him in June, and also in July, he was well enough to go to work; that he complained of his leg being weak, and Dr. Bourne told him it was muscular contraction, and that the limb needed exercise. The effect of Haggerty's testimony is that by the advice of the two doctors and the order of the company he went to work, reluctantly, feeling that he was not yet well enough. The doctors, on the other hand, testify that they warned him against resuming work so soon, and told him his leg was still too weak. He continued in the service of the company until August 21st, when, on account of the condition of his leg, he quit. It is the contention of the defendant that he injured it afresh during the interval he worked. He was treated again for a long time, and was practically out of service until June, 1899, disabled from work most of the time by the condition of his leg.

This action was brought to recover damages for alleged maltreatment and unskillful and negligent surgery by the physicians, it being stated that, in consequence of their negligence in setting the bones, the leg was crooked, and shorter than the other one, and that plaintiff was permanently crippled. Without going into details, it is sufficient to say there was evidence tending to prove the bones were not properly set, nor...