Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Sullivan

• Decision Date: 09 April 1895
• Docket Number: 16,995
• Citation: 40 N.E. 138,141 Ind. 83
• Parties: The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Sullivan
• Court: Indiana Supreme Court

40 N.E. 138

141 Ind. 83

The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Sullivan

No. 16,995

Supreme Court of Indiana

April 9, 1895

From the Cass Circuit Court.

The judgment is reversed, with costs.

N. O Ross, G. W. Funk and B. C. Moon, for appellant.

D. H Chase, for appellee.

OPINION

Jordan, J.

The appellee brought this action to recover damages against the appellant (a railroad corporation engaged in the business of a common carrier) for "unlawfully wrongfully and unnecessarily amputating appellee's right arm."

The principal errors assigned in this court are:

First. Overruling demurrer to complaint.

Second. Sustaining demurrer to second paragraph of answer.

Third. Overruling a motion for judgment in favor of appellant upon the special verdict of the jury.

The complaint, inter alia, alleges: "That on November 21st, 1891, the appellee was a servant of appellant engaged as a brakeman; that while at the station of Red Key, in Jay county, Indiana, in making a coupling, his right arm was accidently caught, crushed and injured; that immediately after plaintiff's said injuries he was taken by the servants of said defendant to the office of one Dr. G. W. Fertich, being then and there one of a number of physicians employed by the defendant to render medical and surgical assistance to the servants and employes of said defendant while engaged in their respective duties as such employes and servants; that immediately after plaintiff's arrival at said Dr. G. W. Fertich's office for medical and surgical treatment, said G. W. Fertich proposed to give the plaintiff chloroform in order to render plaintiff insensible to and unconscious of pain while his said hurts and injuries were being examined and treated; that before plaintiff consented to take said chloroform, he informed said Dr. G. W. Fertich that he would not take chloroform unless he, said Dr. G. W. Fertich, would promise plaintiff that his arm should not be amputated while he was under the influence of chloroform and insensible and unconscious therefrom; that thereupon said Dr. G. W. Fertich promised plaintiff that he would not amputate and cut off plaintiff's injured arm, and plaintiff, relying on such promise, consented to, and did then and there take chloroform, and became then and there unconscious and helpless from the effects thereof, said chloroform being then and there administered to plaintiff, by the order and direction of said Dr. G. W. Fertich, by his assistant, one Dr. Shepherd; that while plaintiff was then and there insensible, unconscious and helpless from the effects of said chloroform, the said Dr. G. W. Fertich did then and there wrongfully, unlawfully and unnecessarily cut off the plaintiff's right arm about six inches above the elbow; that by reason of the unlawful, unnecessary and wrongful act of said Dr. G. W. Fertich, in amputating and cutting off plaintiff's right arm as aforesaid, plaintiff suffered great bodily and mental anguish and pain, and is now suffering great pain of body and mind; that plaintiff has thereby been rendered totally incapacitated from doing manual labor, and permanently injured physically in his means of livelihood and support, and that at the time of his injuries complained of, there was no good or sufficient reason or cause, in fact, or in the science of medicine and surgery, for the amputation of plaintiff's said arm; that plaintiff's said arm could and would have been saved to him by competent and ordinarily skillful medical and surgical treatment."

To this complaint, after having unsuccessfully assailed it by a demurrer, appellant filed an answer in two paragraphs. The first was a denial, and the second was as follows:

"And for a second and further answer the defendant says, that at the time complained of, it owed the plaintiff no duty, nor was it under any legal obligations to furnish him the services of a physician or surgeon to treat him for the injury stated in his complaint; that at the time complained, of G. W. Fertich, of Dunkirk, in Jay county, Indiana, was employed by the year to give and render services as a physician and surgeon to persons injured upon the defendant's road, whether employes or others, which services were gratuitous to the persons receiving them and were provided for the exigencies of each case, temporarily, until the patient could be removed or otherwise provided for, and that such services could be accepted or refused by each person at his own pleasure. And the defendant further says, that in the selection and employment of said Fertich, for the purposes aforesaid, it used due care to procure a skillful and competent surgeon and physician, and believes him to be such, and if incompetent or incapable, in any respect, it had no knowledge of the fact at the time of his employment or since; and that he was the most competent and skillful surgeon and physician in that locality. And the defendant further says, that if said Fertich made any promise or agreement with the plaintiff, as charged in the complaint, it was outside his duties under said employment and not authorized by the defendant."

A demurrer was sustained to this second paragraph of answer, and appellant excepted.

The contentions of the learned counsel for the appellant are:

First. That the complaint is not sufficient to entitle appellee to recover against appellant.

Second. That the second paragraph of answer was a defense to the complaint.

Third. That the gravamen of the complaint is that of malpractice upon the part of Fertich, the physician, and for such appellant is not liable in damages.

Fourth. That the complaint does not allege that Fertich was an agent of plaintiff, nor do the averred facts sustain such an assumption; nor do they show that a duty, by virtue of any law or contract, existed upon the part of appellant to furnish to appellee the services of the surgeon in question; nor do they establish that appellant failed to exercise ordinary care in the selection of said physician.

The contention of the learned counsel for appellee are:

First. That the relation of principal and agent existed between appellant and Fertich, under the facts stated in the appellee's complaint.

Second. That the act of Fertich in cutting off appellee's arm was within the scope of his authority as agent of appellant, under the facts alleged in the appellee's complaint.

Third. That the act of Doctor Fertich in cutting off appellee's arm, as alleged in appellee's complaint, was a crime against the laws of Indiana, and amounted, in law, to an assault and battery, or mayhem.

Fourth. That for such act by Fertich the appellant is liable in damages to appellee.

The first and essential point to be determined is, as to the sufficiency of the complaint to constitute a cause of action against appellant.

It is well settled by numerous decisions of this court and others that a corporation is responsible for the acts of an agent performed while engaged in the discharge of duties within the general scope of his agency, although the particular act was willful, and was not directly authorized.

A corporation that entrusts a general duty to an agent is responsible to an injured person for damages flowing from the agent's wrongful act done in the course of his general authority, although in doing the particular act the agent may have failed in his duty to his principal and disobeyed its...