Sevier v. Birmingham, S. & T.R.R. Co.

• Decision Date: 28 May 1891
• Citation: 92 Ala. 258,9 So. 405
• Parties: SEVIER v. BIRMINGHAM, S. & T. R. R. CO.
• Court: Alabama Supreme Court

9 So. 405

92 Ala. 258

SEVIER v. BIRMINGHAM, S. & T. R. R. CO.

Supreme Court of Alabama

May 28, 1891

Appeal from circuit court, Franklin county; H. C. SPEAKE, Judge.

This action was brought by the appellant, D. V. Sevier, against the appellee corporation, and sought to recover for professional services as a physician and surgeon rendered to an employe of the defendant railway company who had his foot injured while he was in the discharge of his duties as a brakeman. Issue was joined on the general issue. Upon the trial of the case the plaintiff introduced evidence which tended to show that in June, 1889, he was called in to see one Devaney, who was an employe of the defendant railway company, and who had had his foot severely crushed, while in the discharge of his duties as brakeman, by its slipping between the bumpers of two cars while he was getting up from between them after having coupled them, and that in response to the said call he attended the said employe as a physician and surgeon until he died. The plaintiff also introduced in evidence the deposition of the conductor of the freight train upon which the said brakeman was injured, and in this deposition the conductor admitted that he had summoned the plaintiff as a physician to attend to said Devaney after he was injured; that he had no authority to employ a physician nor had he consulted the superintendent or any other higher officer as to the employment of said plaintiff, but that he sent for the doctor immediately after the accident happened. All the other facts necessary to the full understanding of the opinion are set forth sufficiently therein. The court, at the request of the defendant, gave the general affirmative charge in its behalf. There was judgment for the defendant and the plaintiff appeals.

W H. Key, for appellant.

Simpson & Jones, for appellee.

CLOPTON J.

That a railroad company, as a general proposition, is under no legal obligation to provide surgical attendance for an injured employe, though the injuries which render such attendance necessary may be received while in the performance of his employment, may be regarded as elementary. Humanity, however imposes upon the company engaged in such hazardous business a moral obligation, when a person in its employment, without fault on his part, is injured while rendering service, to provide such assistance as may be necessary to prevent loss of life or irreparable injury. This must is demanded by humanity, fair dealing, and the conservation of the interests of the company. Hence, if power for this purpose is not expressly conferred by charter or by the law, authority to incur such a liability by contract will be implied; and, as the corporation must act by agents, the authority, in the absence of positive proof, of an officer or agent to make such contracts binding the company may be inferred from the nature, scope, and extent of his usual powers and duties; its exercise resting in his discretion and judgment. The general superintendent, having supervision of the general management and operation of the road, including the employment, discharge, and control of employes, may, in an emergency, make any contracts connected with or necessary to running the trains. Accordingly, with the exception of the case of Railroad Co. v. Taft, 28 Mich. 289, in which the court was equally divided in opinion on the question, the decisions hold that the authority of the general manager or superintendent to make contracts to pay for necessary medical attendance upon an injured employe may be reasonably inferred from the scope of his general agency, and as imported by his title. Railroad Co. v. Rodrigues, 47 Ill. 188; Railroad Co. v. Mahoney, 82...