Illinois Cent. R. Co. v. Buchanan

• Decision Date: 15 June 1905
• Citation: 88 S.W. 312
• Parties: ILLINOIS CENT. R. CO. v. BUCHANAN.
• Court: Kentucky Court of Appeals

88 S.W. 312

ILLINOIS CENT. R. CO. v. BUCHANAN.

Court of Appeals of Kentucky.

June 15, 1905

Appeal from Circuit Court, Hopkins County.

"Not to be officially reported."

Action by Ed Buchanan against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. M Dickinson, Trabue, Doolan & Cox, and Gordon, Gordon & Cox for appellant.

C.J Waddill and Wm. Worthington, for appellee.

PAYNTER J.

While appellee was in the service of the Illinois Central Railroad Company his kneecap was broken, and he was sent to the Illinois Central Hospital for treatment. He claims that while under the care of the physicians and nurses of the hospital he was unskillfully and improperly treated, and thereby sustained damages, and this action was instituted to recover them, a trial of which resulted in a verdict for him. The alleged right to recover of the Illinois Central Railroad is based upon the averment that it had entered upon a contract with him by which it undertook, in the event of his injury, "that he should be properly and skillfully treated by proper and skillful surgeons in attendance." The court, by its instructions, in substance, submitted to the jury the issue made by a denial of the above averment.

The appellee had been in the employ of the Illinois Central Railroad Company for more than four days, and therefore was entitled to be received by the Illinois Central Hospital Association at Paducah for treatment. The Illinois Central Railroad Hospital Association is a corporation organized under the general laws of this state. The articles of incorporation read as follows:

"That M. Gilleas, W. J. Harahan, A. Philbrick, D. G. Murrell, John L. McGuire, John W. Whedon, have associated themselves pursuant to an act of the General Assembly of the commonwealth of Kentucky of March 22, 1892, which act is incorporated into chapter 32, section 879, 880, and 881, Kentucky Statutes, to form a charitable corporation, from which no private pecuniary profit is to be derived, and have formed and now form such corporation and adopt the following articles of incorporation:

"Article 1. The name of the corporation is Illinois Central Railroad Hospital Association. The hospital of said association is located at Paducah, Kentucky, and the principal office and place of business is at Paducah, Kentucky.

"Art. 2. The object for which the corporation is formed is to give proper care and treatment to the sick and wounded employees of the Illinois Central Railroad Company on the Louisville Division, and that portion of the Memphis Division extending from Paducah, Kentucky, to Memphis, Tennessee, and including Memphis, Tennessee.

"Art. 3. The corporation shall have the right to sue and be sued, contract and be contracted with, have and use a common seal and alter the same at pleasure, and receive and hold such property real and personal, whether obtained by purchase, gift, or devise as may be necessary to carry on or promote the objects of the corporation, and may sell or dispose of such property at pleasure, unless the property has been received as a gift or devise, for some special purpose and if so received it shall be used and applied only for such purpose. The corporation may adopt such rules for its government and operation not inconsistent with law as the directors may deem proper, but it shall not be operated, managed or used for private gain or engaged in any plan or scheme of banking or insurance. The corporation by the consent of two-thirds of the directors may amend any part of the articles of incorporation by filing and recording the amendment in the office of the Secretary of State and recording in the county clerk's office of McCracken county, Kentucky. The corporation for the support of its hospital shall have power to levy a monthly assessment upon the members of the corporation of such sums as shall be fixed by the by-laws of the corporation and enforce the payment of such assessment in the manner provided by the by-laws of the corporation.

"Art. 4. All officers and employees of the Illinois Central Railroad Company on the Louisville Division and that portion of the Memphis Division extending from Paducah, Kentucky, to Memphis, Tennessee, including Memphis, Tennessee, shall be members of the corporation except persons of known disability or suffering from chronic disease.

"Art. 5. The corporation shall be governed by a board of eleven directors constituted as follows: M. Gilleas, the assistant general superintendent of the Southern lines of the Illinois Central Railroad Company and his successors in office; D. G. Murrell, the assistant chief surgeon of the Illinois Central Railroad Company, located at Paducah, Kentucky, and his successors in office; W. J. Harahan, superintendent of the Louisville Division of the Illinois Central Railroad Company, and his successor in office; A. Philbrick, the superintendent of the Memphis Division of the Illinois Central Railroad Company, and his successor in office; H. R. Dill, the assistant superintendent of the Evansville District of the Illinois Central Railroad Company, and his successor in office; L. A. Downs, the road master of the 10th Division of the Illinois Central Railroad Company, and his successor in office; D. Sheahan, the road master of the 13th Division of the Illinois Central Company, and his successor in office; John McGuire, John W. Whedon, and John Lane. The term of office of the first-named eight members of the board of directors shall be continuous. The term of office for the last named three of the board of directors shall be for one year, and until their successors shall be elected. The successors of the said three members shall be elected by the other eight members of the board on the second Friday in August, 1901, and annually thereafter, and shall be so selected as to represent as nearly as possible the employees of the transportation department, of the mechanical department and of the road department and such persons shall be selected from said departments as will best be able to attend all meetings of the board of directors. M. Gilleas shall be chairman of the board of directors and shall be succeeded in the chairmanship of the board of directors by his successor in office, the assistant general superintendent of the southern lines of the Illinois Central Railroad Company. The regular meetings of the board of directors shall be held quarterly on the second Friday in February, May, August and November of each year, and the meeting held in August shall be the annual meeting of the board of directors. All the corporate powers of the corporation shall be vested in the board of directors. The board of directors shall elect all officers except chairman of the board, and shall fix the term of office of the officers of the hospital at one year with power to remove such officers for cause, which shall be stated in writing and acted upon by a majority of the members constituting the board. The by-laws shall provide for the government of the hospital, for proper committees of the board and for such officers as the board of directors may deem proper for conducting the business of the corporation. The principal officer of the corporation shall be the chairman of the board of directors.

"Art. 6. The corporation shall begin its existence when these articles have been filed in the office of the Secretary of State of Kentucky and recorded in the office of the county clerk of McCracken county, Kentucky, and shall continue for fifty years from that date."

These articles of incorporation were signed by the persons designated as directors therein, and were duly acknowledged and recorded, and the corporation was thus regularly formed. It is contended that the directors are officers and agents of the Illinois Central Railroad Company, and therefore the Illinois Central Railroad Company is liable for the misconduct or unskillful act of the physicians and nurses in charge of the institute. It will be observed, by article 4 that all officers and employés of the Illinois Central Railroad Company are members of the corporation, with certain exceptions. By article 3, the hospital corporation, for its support, shall have power to levy upon its members such sums as shall be fixed by the by-laws of the corporation, and enforce their payment as provided by the by-laws. Under the by-laws of the corporation, those entering the service of the Illinois Central Railroad Company who work more than four days are entitled to the benefits of the hospital. Under the by-laws, the members of the association who receive $40 per month and under are required to pay 40 cents monthly, and the amounts to be paid by other employés are governed by the salary or compensation received by them. Members of the association are entitled to free medical and surgical attendance, medicine, board, and nursing at the hospital while disabled, whether from sickness or injury, unless the disability arises from certain diseases. Sums which the members of the association are required to pay are collected by the Illinois Central Railroad Company to pay the expenses of the hospital, and it goes into the hands of the treasurer of the hospital association, who is also the treasurer of the Illinois Central Railroad Company. There is no evidence that the Illinois Central Railroad Company retains or gets the benefit of a cent of the money or enjoys any profit by the operation of the hospital. Under the articles of incorporation, the appellant does not even retain control of the funds which it gathers for the association, for they go to the treasurer of the hospital association. The parties who are designated as directors are not made so as the officers of the Illinois Central Railroad...