Missouri, K. & T. Ry. Co. of Texas v. Freeman

• Decision Date: 21 March 1903
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. FREEMAN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

73 S.W. 542

MISSOURI, K. & T. RY. CO. OF TEXAS v. FREEMAN et al.^*

Court of Civil Appeals of Texas.

March 21, 1903.

Appeal from District Court, Hunt County; H. C. Connor, Judge.

Action by Annie Freeman and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment in favor of plaintiffs for $7,000, defendant appeals. Modified.

T. S. Miller and Perkins & Craddock, for appellant. Evans & Elder, for appellees.

Conclusions of Fact.

BOOKHOUT, J.

The appellant, the Missouri, Kansas & Texas Railway Company of Texas, enters into agreements with its employés whereby, in consideration of deducting a stipulated sum from their wages each month, in case any one of them should become sick or injured while in its service it will furnish them surgical and medical attention. Appellant entered into a contract with Alonzo Dickson, an employé, whereby it was agreed that, in consideration of deducting 25 cents from his wages each month, if he should become injured or sick it would take charge of him and treat him for such injury or sickness. On August 1, 1899, and for many years prior thereto, the appellant was operating and controlling a hospital department for the purpose of treating its sick and injured employés. The Missouri, Kansas & Texas Railway Company of Texas and the Missouri, Kansas & Texas Railway Company constitute what is known as the Missouri, Kansas & Texas Railway System. Said companies operate, in connection with and as a part of their legal and claim departments, their hospital department, under one general management, for the mutual benefit and interest of the companies and their respective employés. The Kansas Company owns a hospital at Sedalia, Mo., that is used by the two companies, where some of the employés of appellant are sent for treatment when sick or injured. During the latter part of July, 1899, Alonzo Dickson, who was then in the employment of appellant as a section hand, and had been in such employment for four years in Hunt county, received a slight injury in such service, and was sent to the Sedalia Hospital; arriving there on August 1, 1899. At the time he was placed in the hosiptal he was placed in a ward with some colored patients who were broken out with the smallpox, smallpox having existed in the hospital from the 10th day of July previous. He complained to the surgeon in charge, and told him that those negroes had smallpox, and that he desired to leave the hospital. He was told by the surgeon that it was only chickenpox, but to come around the next morning, and he would give him a pass back to Greenville. On the next morning, August 2, 1899, he was discharged from the hospital, sent back to Hunt county, and placed at work for appellant under James Ewing, section foreman. George McNeil was the house surgeon of said hospital. It was his duty to examine, admit, treat, and discharge patients sent to the hospital, and to keep a register showing the names and addresses, and the dates of admission and discharge, of all patients sent to the hospital for treatment. This surgeon was inexperienced in the treatment of smallpox; never having treated a case prior to this time; there never having been a case of smallpox in the hospital since he had been in charge; he being put in charge in 1890, the same year he graduated from college. It was not determined that there was smallpox in the hospital until August 2, 1899, the day Dickson was discharged from, and after he left, the hospital. On that day the city of Sedalia quarantined the hospital on account of the prevalence of smallpox in the hospital, and it remained under quarantine until September 11, 1899. Prior to the 2d day of August, appellant did not know that smallpox existed in the hospital, but learned it on that day, and that Dickson had been exposed thereto, and was liable to break out with the disease in about 15 days. No precautions were taken to protect him, or the public against him, until the 19th day of August, when he broke out with the disease. On August 3, 1899, the division superintendent of appellant, A. D. Bethard, at Denison, Tex., sent to A. W. Baxley, at Greenville, Tex., the road master of the Mineola Division of appellant's lines, the following telegram: "During quarantine at Sedalia hospital, local surgeons will look after sick or injured employés except those who desire to go to hospital, who may be sent to Dallas, Ft. Worth or Houston infirmary." When Dickson broke out with smallpox, and this fact was made known to the company's local surgeon, Dr. Garnett, he wired Dr. Yancey, the chief surgeon, to know what to do with him, and the chief surgeon wired him: "Isolate and quarantine him, secure a nurse at reasonable wages, and give him such attention there as he will need. Write me particulars and daily expenses. Attend to vaccination and watch any one who may have been exposed by him."

When R. M. Chapman, who was then the mayor of Greenville, learned that Dickson had smallpox, and before he learned that he was an employé of appellant and had been exposed to the disease at its hospital, he purchased a tent, and arranged with the owner of some lands, preparatory to taking charge of Dickson. This was Sunday afternoon, August 20, 1899. But before taking charge of Dickson, Dr. Garnett showed Chapman his instructions from Dr. Yancey, at which time Dr. Garnett, acting under said instructions from Dr. Yancey, took charge of Dickson, and undertook to isolate and quarantine him. He placed him in the tent and on the land that had already been secured and designated by Chapman as a quarantine camp, and Chapman took no further steps until after Dickson had escaped, which was on Tuesday morning, August 22d. On that afternoon the mayor, acting on the understanding that the railway company would defray the expenses, hired one additional guard for the pest camp, and confined in it all who had been exposed to Dickson. Dr. Garnett, having taken charge of Dickson, undertook to isolate and quarantine him on behalf of the railway company, and neglected to employ a sufficient number of attendants or guards to restrain him, but negligently employed an incompetent Mexican, and placed him in charge of Dickson to guard and nurse him for the first two days. The railway company knew, or in the exercise of ordinary care could have known, of the incompetency of said Ablo. Frank Ablo was put in charge of two patients afflicted with smallpox, to nurse and guard them. The said Ablo, while so employed, and within the scope of his duties, left the camp or pesthouse, and went upon one of the public streets of the city of Greenville, without having disinfected himself, and while on a public street came in contact with W. A. Freeman, and caused him to contract said disease, from which said Freeman died. The said Ablo, in leaving said camp and going upon the public streets of the city of Greenville, where he was liable to come in contact with persons who had not had smallpox, was negligent, and was also negligent in not disinfecting himself; and the railway company was also guilty of negligence in so permitting said Ablo to leave said pest camp and go upon the public streets of Greenville. W. A. Freeman was not guilty of contributory negligence in coming in contact with said Ablo and in contracting said disease, nor in failing to have himself vaccinated. By reason of the death of said Freeman, plaintiffs, except C. J. Freeman, sustained...