Southern Ry. Co. v. Brister
| Decision Date | 26 November 1901 |
| Citation | 79 Miss. 761,31 So. 440 |
| Parties | SOUTHERN RAILWAY COMPANY v. HUMPHRIES & BRISTER |
| Court | Mississippi Supreme Court |
FROM the circuit court of Leflore county. HON. FRANK E. LARKIN Judge.
Humphries & Brister, appellants, were plaintiffs in the court below the railway company, appellee, was defendant there. The opinion states the facts.
Affirmed.
Catchings & Catchings, for appellant.
It is well settled that the employment of a physician or surgeon is not ordinarily within the scope of the authority of a subordinate agent or employe, though there may be extreme cases giving authority to employ one. The roadmaster has no such authority. Louisville R. R. Co. v. McKay, 98 Ind. 391. Nor has a section foreman. Tucker v. St. Louis R R. Co., 54 Mo. 177. Nor has a yard master. Marquette R. R. Co. v. Taft, 28 Mich. 289. Nor has a station master. Cox v. Midland R. R. Co., 3 Each., 268. Nor has a company's solicitor. St. Louis, A. & T. R. R. v. Hoover, 53 Ark. 377. Nor a company's surgeon. Mayberry v. Chicago R. R. Co., 75 Mo. 492; Terre Haute R. R. Co., v. Brown, 107 Ind. 336. Nor a company's engineer. Cooper v. N. Y. Central R. R Co., 13 N.Y.S. 276. Nor a conductor. St. Louis R. R. Co v. Hoover, 53 Ark. 377.
An emergency calling for immediate action in order to save life, or prevent suffering, may be sufficient to confer authority upon a subordinate to employ necessary surgical aid, if he is the highest representative of the company on the ground. Terre Haute. R. R. Co. v. McMurray, 98 Ind. 358.
There may be cases of immediate urgency, when the agent may cause to be rendered those imperative services which the dictates of justice and humanity would indicate to the servant injured, and to take such measure as would prevent needless suffering and loss of life. Marquette R. R. Co. v. Taft, 28 Mich. 289.
The authority of a subordinate agent, however, arises only with the emergency which makes it necessary for him to possess it, and ends with such emergency. Louisville R. R. Co. v. Smith, 121 Ind. 353.
And neither a conductor, a road master, a section agent, a station agent, nor the company's physician, can bind it by a contract for nursing and care bestowed on an employe during a protracted illness. Indianapolis R. R. Co. v. Norris, 67 Ill. 295; Louisville R. R. Co. v. Smith, 121 Ind. 353; Louisville R. R. Co. v. McVay, 98 Ind. 391; Atlantic R. R. Co. v. Reisner, 18 Kan. 458; Mayberry v. Chicago R. R. Co., 75 Mo. 492.
In the case of officers and superior agents having general authority to enter into such contracts for the company, authority to procure care and medical attendance of an injured employe has been held to be incident to such general authority. Accordingly, it has been held that the general manager, or the general superintendent, or the assistant superintendent, having general supervising authority over the interests of the railroad company, possesses authority to make such contracts on behalf of the company. Atlantic R. R. Co. v. Reisner, 18 Kan. 458; Louisville R. R. Co. v. McVay, 98 Ind. 391; Cincinnati R. R. Co. v. Davis, 126 Ind. 99; Terre Haute R. R. Co. v. Stockwell, 118 Ind. 98; Atchison R. R. Co. v. Reecher, 24 Kan. 228; Cairo Co. v. Mahoney, 82 Ill. 73; Bigham v. Chicago R. R. Co., 79 Iowa 354.
We respectfully submit that a train master is not such a general officer as any of those above described, and that, in the absence of proof that he had the power of a general officer in this regard, the plaintiffs below were not entitled to recover. The only testimony as to his authority is that of Mr. Dunn, who said: "He has control of the handling of the trains, and of employes of trains, except engineers and firemen," and also that he employed operators.
We respectfully insist that the testimony does not show that the train master had any authority to make any contract at all for the employment of a surgeon. If he had authority, under any circumstances, it would only be in cases where there was a great emergency, and where he was the highest representative of the company on the ground. See Brown v. Mo. R. R. Co., 67 Mo. 122, holding that a division superintendent would not be presumed to have power to bind the company for a small bill of drugs furnished a woman who had been hurt by the locomotive or cars of the company. The court said: "No proof was offered as to the duties of such officer, and the court cannot take judicial notice of them."
Gwin & Mounger, for appellee.
The action of the court in giving the peremptory instruction was proper. The order for Dr. Humphries to attend the wounded employe of the road was sent by the train master, who performed the duties of a division superintendent of the road, and had full authority to contract for this service by the physician. Relying upon this order, and accepting the employment upon the terms expressed in the order, the services were performed. The testimony of Dunn, who is familiar with the rules and customs of the railroad, shows that the train master had this authority. A division superintendent of a railway company has authority to employ a physician to attend a passenger or employe injured by the trains of the company. 20 L. R. A., 696, note. And this is true, although the company may have a general surgeon, or other officer, whose duty it is to employ surgeons to give professional attention to persons injured by its trains. C., L., St. L. & C. R. R. Co. v. Davis, 9 L. R. A., 503. A depot or station agent, or a conductor of a train have this power to employ when they are the highest in authority on the scene. 20 L. R. A., 695, note. See cases cited in Am. & Eng. R....
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