Williams v. Union Pacific Railroad Company

• Decision Date: 10 June 1912
• Docket Number: 670
• Citation: 20 Wyo. 392,124 P. 505
• Parties: WILLIAMS v. UNION PACIFIC RAILROAD COMPANY
• Court: Wyoming Supreme Court

124 P. 505

20 Wyo. 392

WILLIAMS v. UNION PACIFIC RAILROAD COMPANY

No. 670

Supreme Court of Wyoming

June 10, 1912

ERROR to the District Court, Uinta County; HON. DAVID H. CRAIG Judge.

The action was brought by Joseph H. Williams against the Union Pacific Railroad Company, for damages alleged to have been sustained through an unnecessary act of a surgeon furnished by the defendant to the plaintiff when injured, in the performance of an operation upon the plaintiff. A general demurrer to the petition was sustained, and the plaintiff declining to plead further, judgment was rendered for the defendant. The plaintiff brought the case to the Supreme Court on error. The material facts, as alleged in the petition, are stated in the opinion.

Reversed.

J. H Ryckman, for plaintiff in error.

The point made upon the demurrer, and which led the district court to sustain it, was that the defendant in error, as a railroad corporation, is not authorized to do business as a physician, or as a hospital, and that its conduct of a hospital for pay would be ultra vires, and that the company would therefore not be liable for the negligence of its surgeons. However, it was conceded that the company has the right to assist its employes in furnishing proper medical and surgical attention in case of accident or sickness, but that its whole duty is discharged when it employs physicians and surgeons of the requisite knowledge and ability. The contention of the company, we think, is untenable. The courts of this state will not take judicial notice of the statutes or charter of another state under which the defendant is incorporated. (Corey v. R. Co., 5 Ia., 357.) Railroad corporations are not charitable institutions although this company seems to have been held analogous to such an institution in U. P. R. Co. v. Artist, 60 F. 365, 23 L. R. A. 581. But in that case the decision was reached only after a trial upon the evidence which showed the payment by the plaintiff of monthly hospital fees and a contribution by the company of several thousand dollars per month. In the case at bar it is explicitly alleged that the company contracted to provide the plaintiff hospital accommodations and skillful and capable physicians, surgeons and nurses in case of sickness. That element was lacking in the Artist case. However, that case is not binding upon the courts of this state. A more reasonable and proper view is taken of a case like this in Sawdy v. Spokane &c. Co., 70 P. 972, 30 Wash. 349, 94 Am. St. 880. The treatment of the plaintiff was not a charity because he paid for the treatment. In no reasonable or humane aspect can it be a charity or gratuitous service to an employee when he has paid all that the company exacts of him. The company having conducted a hospital, and contracted to treat the plaintiff for any injury received by him while in its employ, it is liable for the malpractice of a surgeon employed for that purpose. To constitute a public charity there must be an absolute gift to a charitable use for the benefit of the public. (Coe v. Washington Mill, 149 Mass. 543, 21 N.E. 966.) Where a railroad company has entered into a contract, express or implied, not in itself immoral, and not forbidden by any statute, and it has in good faith been performed by the other party, the company cannot be heard to plead ultra vires. (Louisville &c. R. Co. v. Flanagan, 113 Ind. 488, 3 Am. St. 674.)

Herbert V. Lacey and John W. Lacey, for defendant in error.

It has been held generally that a railroad company is not liable for the negligence of its surgeons when the company has used reasonable care in their selection. In reaching that conclusion the courts have not adopted the same line of reasoning, but, an "identity of conclusion reached, though by different roads, is a strong proof of its correctness." (Powers v. Hospital, 109 F. 294.) All liability of a railroad company for the negligence of its surgeons must be predicated upon the rule of respondeat superior--a harsh rule at best. (Haas v. Miss. Soc. 26 N.Y.S. 868.) That rule is not to be extended except upon careful consideration. It was first declared that the rule did not apply to charitable hospitals, but it was generally held that the duty of such a hospital ended with the selection of capable surgeons and nurses. (McDonald v. Hospital, 120 Mass. 432; Ward v. Hospital, 50 N.Y.S. 466; Hearns v. Hospital, (Conn.) 33 A. 595; Downs v. Hospital, (Mich.) 60 N.W. 42; Powers v. Hospital, supra.) It is held that steamship companies have performed their full duty as to surgeons carried on their passenger boats when they have been selected with reasonable care. (Laubheim v. Netherland S. Co., (N. Y.) 13 N.E. 781; Allan v. State S. Co., (N. Y.) 30 N.E. 482; O'Brien v. Cunard S. Co., (Mass.) 28 N.E. 266.)

The railroad cases have all been decided with particular reference to the facts and circumstances of each case, but certain general principles have been clearly established. Where the employee was injured while in the employ of the company without the latter's fault, and, by the direction of an operating official, was placed in the hands of a company surgeon for treatment, and, the company either supports its medical department entirely from its own funds, or partially from contributions from its employees, it is held that its whole duty is to furnish proper medical skill, which is performed where reasonable care has been used to that end. (York v. Chicago, &c., R. Co., (Ia.) 67 N.W. 574; Ry. Co. v. Sullivan, (Ind.) 40 N.E. 138; Clark v. Ry. Co., (Kan.) 29 P. 1138; Secord v. St. Paul Ry. Co., 18 F. 221.) It is the skill of the physicians upon whom the patient relies, unhampered by orders from the railroad company. (Atchison, &c., Co. v. Zeiler, (Kan.) 38 P. 282; R. Co. v. Howard, (Neb.) 63 N.W. 872; U. P. v. Artist, 60 F. 365; Quinn v. Ry. Co., (Tenn.) 30 S.W. 1036.) Where the company has selected surgeons skilled and competent in their profession, it has discharged every duty that humanity or sound morals impose, and it is not liable to any extent for mistakes which the surgeons so selected may commit. (Barden v. A. C. Line, (N. C.) 67 S.E. 971; Ry. Co. v. Price, (Fla.) 13 So. 638; Pierce v. U. P. (Ia.) 66 F. 44; Eighmy v. U. P., (Ia.) 61 N.W. 1056; Ry. v. Foard, (Ky.) 47 S.W. 342; Miller v. Coal Co., (Or.) 85 P. 502; Jackson v. Milk Co., (Or.) 120 P. 1; Maine v. R. Co., (Ia.) 70 N.W. 631; Wells v. Lumber Co., (Wash.) 107 P. 869; Ry. v. Midland, (Ark.) 132 S.W. 113, 135 S.W. 917.)

The petition fails to allege negligence on the part of the company in selecting the surgeon, nor does it allege that he was not skilful. As the petition fails to allege negligence on the part of the company as well as the non-performance of any duty the demurrer was properly sustained. It is not sufficient to allege the defendant's duty, without the statement of facts showing the existence of the duty, for without such facts the allegation would be a mere conclusion of law. (McAndrews v. Ry. Co., (Ill.) 78 N.E. 603; Ry. Co. v. Lain, (Ind.) 83 N.E. 632; Hone v. Water Co., (Me.) 71 A. 769; Breese v. Trenton, &c., Co., (N. J.) 19 A. 204; R. Co. v. Wilson, 31 O. St. 555.)

SCOTT, JUSTICE. BEARD, C. J., and POTTER, J., concur.

OPINION

SCOTT, JUSTICE.

The plaintiff in error as plaintiff filed his petition against the defendant in error as defendant in the district court of Uinta County which, omitting the title, is in words and figures as follows, to-wit:

"The plaintiff complains of the defendant and for a cause of action alleges as follows, to-wit:

1. That the defendant is and at all the times mentioned in this petition was a corporation organized and existing under and by virtue of the laws of Utah and owned and operated a line of railroad in the states of Utah and Wyoming and owned, operated and controlled a round-house and repair shops at the town of Evanston in the State of Wyoming.

2. That in the month of February, 1906, and for a long time prior thereto, the plaintiff was in the employ of the defendant in said shops at the said town of Evanston as a blacksmith helper at the agreed compensation of 22 cents per hour; that a part of said agreement and contract of employment between plaintiff and defendant was that the plaintiff should pay to the defendant each month while in the employ of the defendant out of his wages as such employee the sum of 50 cents per month for the support and maintenance of the defendant's hospital situated at the City of Ogden in the State of Utah; that in consideration of said payment of said sum of money to the defendant from month to month, the defendant contracted and agreed with the plaintiff to furnish plaintiff with hospital accommodations in said hospital at Ogden and to provide and furnish trained and capable nurses and skilled and competent physicians and surgeons in said hospital for the care and treatment of the plaintiff in the event that he should become sick or disabled or accidentally injured while working for the defendant and in the regular course of his employment and contracted and agreed for the consideration aforesaid to furnish the plaintiff with the services of skilled and competent physicians and trained and capable nurses in case of any injury to the plaintiff while working for the defendant as aforesaid.

3. That under said contract of employment as aforesaid and in consideration of the payment by the plaintiff to the defendant from month to month of the said sum of money while plaintiff worked for the defendant, it became and was the duty of the defendant, in case the plaintiff should become injured while working for defendant under said contract, to furnish the plaintiff with proper hospital accommodations in said hospital and to treat him properly therein, and to...