Owens v. Gulf & S.I.R. Co.

• Decision Date: 03 June 1918
• Docket Number: 20238
• Citation: 79 So. 348,118 Miss. 437
• Parties: OWENS ET AL. v. GULF & SHIP ISLAND RAILROAD CO
• Court: Mississippi Supreme Court

79 So. 348

118 Miss. 437

OWENS ET AL. v. GULF & SHIP ISLAND RAILROAD CO

No. 20238

Supreme Court of Mississippi

June 3, 1918

Division B

APPEAL from the circuit court of Covington county, HON. W. H HUGHES, Judge.

Suit by Josephine Owens and others against the Gulf & Ship Island Railroad Company. From a judgment sustaining the demurrer to the declaration as to the named defendant and defendant Dr T. E. Ross and overruling the demurrer as to the defendant Hattiesburg Hospital, the plaintiffs appeal.

Josephine Owens and others, plaintiffs, filed this suit in the circuit court of Covington county against the Gulf & Ship Island Railroad Company, the Hattiesburg Hospital, and Dr. T. E Ross, defendants, demanding damages in the sum of fifty thousand dollars. Plaintiffs' declaration was demurred to by the defendants, and that demurrer was sustained by the lower court. The plaintiffs then filed an amended declaration containing four counts. The first count is as follows:

"Comes plaintiff Josephine Owens, for herself and as next friend to her minor children, viz. Owens and Owens and Owens, and complains of the Gulf & Ship Island Railroad Company, a corporation, the Hattiesburg Hospital, a corporation, and Dr T. E. Ross, a physician and surgeon, of Hattiesburg, Forrest county, Mississippi, in an action of damages, and alleges the following facts:

"That plaintiffs are citizens of Smith county, Mississippi, and said Josephine Owens is the widow of Lonnie Owens, deceased, and said minor children are the children of said deceased, who died intestate about the 5th day of January, 1915; Plaintiffs being the sole heirs of said deceased, Lonnie Owens.

"That defendant Gulf & Ship Island Railroad Company is a railroad corporation, organized and incorporated under and by virtue of the laws of the state of Mississippi, and as such corporation owns a main line of railroad track extending from Jackson, Mississippi, through all the counties necessary on its route, including said Covington county, Mississippi to Gulfport Mississippi, with a branch line of railroad track extending from Saratoga, Mississippi, to Laurel, Mississippi; that in said Covington county, Mississippi, are stations, with agents and employees of said defendant therein, on whom process can be served.

"That said defendant railroad company also owns the rolling stock on its said railroad line, with all the necessary appliances, including passenger and freight trains and cars, boilers, engines, and all things necessary for carrying on a general railroad business, and is now and has been long prior to this time a common carrier, engaged in a general railroad business, operating its passenger and freight trains and cars propelled by steam, transporting passengers and freight for pay over the railroad line aforesaid.

"That defendant Hattiesburg Hospital is a corporation organized and incorporated under the laws of the state of Mississippi, domiciled at Hattiesburg, Forrest county, Mississippi, with officers and agents therein on whom process can be served, and is engaged in surgical attention and treatment to the sick and wounded, who go or are carried there for such treatment; its officers, directors, and stockholders being the officers, agents, and employees of the defendant Gulf & Ship Island Railroad Company.

"The defendant T. E. Ross is a resident citizen of Forrest county, Mississippi, and is the physician and surgeon of the defendant Hattiesburg Hospital, and the general manager and superintendent of the said hospital; also the employee of both the defendants Hattiesburg Hospital and the Gulf & Ship Island Railroad Company. That the said T. E. Ross is a careless, reckless, unskilled, and incompetent surgeon and physician, and has been guilty repeatedly of malpractice as such physician and surgeon, all of which is and was well known to the defendant Gulf & Ship Island Railroad Company, long prior to this date, and long prior to the date when Lonnie Owens, deceased, was carried by the defendant Gulf & Ship Island Railroad Company to the defendant Hattiesburg Hospital and turned over to the defendant T. E. Ross for treatment for a gunshot wound, who was then and there the employee of the other two defendants as aforesaid.

"That for some time prior and up until the 24th day of December, 1914, Lonnie Owens, deceased, was an employee of the defendant Gulf & Ship Island Railroad Company as a section foreman on the Laurel branch of the said defendant railroad line aforesaid. That on said 24th day of December, 1914, while an employee of the defendant aforesaid, the said Lonnie Owens, deceased, husband and father of the plaintiffs herein, was accidentally shot with a shotgun by his brother at or near his home in Smith county, Mississippi, on said branch of said defendant's railroad line aforesaid.

"That the contents of the load from said shotgun, so in the hand accidentally discharged by his brother, entered the right side and arm of said Lonnie Owens, deceased, and inflicted a painful, but not fatal wound, and with the necessary medical and surgical attention and treatment from a skilled and competent physician and surgeon the said deceased would have soon recovered from the said wound so inflicted.

"That in a few hours after the said Lonnie Owens, deceased, had been wounded as aforesaid, and after a local physician had temporarily treated his said wound, sufficient only to prevent the blood from flowing from his said wound, and by placing medicated gauze thereon to give temporary relief, until he could be transported to some place for permanent examination and treatment, the said defendant Gulf & Ship Island Railroad Company, with its passenger train, came and took charge of the said wounded man, and carried him on said train, away from his family and people and family physician, to the defendant Hattiesburg Hospital, with the pretense of giving him treatment, and there turned him over to the defendant Dr. T. E. Ross for surgical and medical treatment for the wound aforesaid, knowing at the time that deceased was greatly in need of surgical and medical treatment by a skilled and competent physician and surgeon. That by the so taking charge of said wounded man for treatment, as aforesaid, the said defendant railroad company took upon itself the legal duty of treating or causing to be treated, said deceased, in his wounded condition, with common humanity.

"That the defendants, and all of them, well knew, when said deceased, the husband and father of plaintiffs, was so carried and delivered to said hospital and to said T. E. Ross, the manager thereof, that he then and there was greatly in need of skilled medical treatment and surgical work done for his said wound; yet, notwithstanding this knowledge of the needs of deceased, and his repeated requests and begging of the defendants, each and all of them, to comply with their legal obligations to him, to treat him with common humanity, still, in strict violation of their duty the defendants and each of them then and there owed deceased, they and all of them permitted a period of ten days to elapse, with the deceased on bed in said hospital, and neither cleaned out, washed, and treated said wound, nor even examined same, to ascertain what was therein, or what treatment was required or necessary, notwithstanding deceased was suffering intense pain and agony during this time, and said deceased during said time pleaded and begged said defendants each and all of them to carry out their said duty, obligation, and requirement, and give him medical treatment and surgical aid for his said wound.

"That during the time that deceased was so in said hospital, under the control and management of the defendant T. E. Ross, suffering as aforesaid, after deceased had been therein some four or five days without attention and treatment as aforesaid, deceased notified the defendant Gulf & Ship Island Railroad Company that the defendant Hattiesburg Hospital and the defendant Dr. T. E. Ross were not giving him any treatment or attention whatever, and that he was suffering greatly, and very badly needed medical treatment and surgical aid, and without such treatment he could not live; still, with this notice before the agents and employees, in authority, of the said defendant Gulf & Ship Island Railroad Company, it was passed by said defendant railroad company, without causing any attention or treatment given to deceased whatever.

"Plaintiffs allege that all the treatment or attention that was ever accorded deceased while so in said hospital, under the control and management of the said T. E. Ross as aforesaid, was the taking off of the bandage placed on his said wound before leaving home, and the placing of another medicated cloth or gauze thereon. That by reason of the careless, reckless, and gross negligence of the defendants, and each and all of them, in not treating deceased's wound as aforesaid, and the willful and malicious malpractice on the part of defendant Hattiesburg Hospital and the defendant T. E. Ross, all of which willful and malicious malpractice was well known to the defendant Gulf & Ship Island Railroad Company, that septicaemia and putrefaction set up in the unwashed and uncleaned wound of deceased while so in said hospital, and under the control and management of the said T. E. Ross. That while in this condition, deceased's pain and suffering became almost unbearable by man, and was directly and approximately caused by the careless, reckless, and gross negligence of the defendants, each and all of them, and their willful and malicious malpractice, which was well known to each and all of the defendants as aforesaid.

"Plaintiffs allege that, after deceased had remained in the said hospital for said period of ten days without...