Haggerty v. St. Louis, Keokuk & Northwestern Railroad

100 Mo. App. 424 | Mo. Ct. App. | 1903

GOODE, J.

1. The point is raised that the petition does not state a cause of action, wherefore the motion in arrest ought to have been sustained. No objection to the petition was taken before verdict by demurrer or motion, or by opposing the reception of testimony to prove its averments. But we think the petition pleads a cause of action that would have been good against a demurrer, and is certainly good at this stage of the proceedings. The cause of action stated is that the defendant obligated itself to furnish competent and skillful physicians and surgeons to attend injured employees who were members of the relief department; that in disregard of said obligation it furnished unskill - ful surgeons who treated plaintiff in a negligent way to his detriment, and that he submitted to treatment by said surgeons on account of the contract between him and the defendant company for surgical attendance by virtue of his membership in the relief fund. The objection made to those allegations is that they state a conclusion of law instead of facts; but we think they state the ultimate facts according to their legal effect-in creating a certain contract, instead of stating the evidence in detail; and this is good pleading. Pye v. Rutter, 7 Mo. 548; Page v. Freeman, 19 Mo. 471; Jones v. Louderman, 39 Mo. 287; Kansas City v. Johnson, 78 Mo. 661; Long v. Armsby Co., 43 Mo. App. 253. It would have been improper for the plaintiff -to set out all the regulations of the relief department in order to show a contract or obligation on the part of the defendant to furnish skillful surgical attendance to injured members, while it was proper for him to aver that such an obligation existed. Reilly v. Cullen, 159 Mo. 322. "Whether be proved it or not is another question.

Accepting defendant’s contention that it is liable only if it failed to exercise due care in selecting a surgeon and is not liable for the surgeon’s negligence, enough was stated in the petition to constitute a cause of action on the theory that the defendant was negligent in making choice of surgeons to wait on plaintiff. As we have pointed out in the statement, the use of the word “proper” in the paragraph we have quoted from the petition, instead of the word “improper,” is manifestly a clerical error; for the latter word is shown by all the allegations of the petition to be the one meant. Other excerpts might be quoted from which an intention to allege want of due care by the railroad company in selecting a physician may be deduced. Failure to allege a fact without which the jury could not have rendered their verdict, is cured by verdict if the existence of the fact can be gathered by reasonable intendment from those definitely averred. Munchow v. Munchow, 96 Mo. App. 553; Bank v. Railroad, 46 Mo. App. 555.

The case, however, was not submitted to the jury on the defendant’s theory, and any imperfect allegations may be cured hereafter by amendment. The petition is desultory and can be worked over with advantage.

2. It is insisted no evidence was adduced by the plaintiff tending to prove that in point of fact Dr. Bourne employed Dr. Smith, and this contention is strenuously urged as sufficient to defeat plaintiff’s demand. We do not lay so much stress on it as defendant’s counsel do, who treat the case as though the question of the .railroad company’s liability depends entirely on whether Dr. Bourne hired Dr. Smith, and if he did, whether he acted by' authority. But this is narrowing the issues joined by the pleadings. The petition does not base plaintiff’s light to recover solely on maltreatment by Dr. Smith, nor state a case in which the surgery of Dr. Smith is alone called into question. Throughout, it treats Bourne and Smith as two physicians who were employed by the company, pursuant to its obligation, to attend plaintiff, set his leg and give him surgical attendance until it healed; and, we think, there was evidence tending to prove that Smith and Bourne both treated the case. Bourne himself testified that he visited the plaintiff every month, after the accident happened, until August. He also testified to giving him advice about abstaining from work; while Haggerty testified that Hr. Bourne told him on two occasions he was strong enough to go to work, inquired about his limb at different times, advised him about leaving the splints off, examined it, and, at the time of his first visit, said he would turn the case over to Smith; that afterwards when he expressed dissatisfaction with the setting of his leg and wanted it re-set, Dr. Bourne said that was unnecessary and might produce a worse result. Dr. Bourne doés not deny conferences with Dr. Smith about the case, but contends such incidents were mereiy informal talks between two doctors, one in charge of a case and the other casually observing it, instead of regular professional consultations by surgeons giving joint treatment. His visits he explains by saying it was his duty as medicql examiner of the relief department, to visit all patients in order to keep the superintendent posted as to how long they were entitled to benefits and when they were well enough to resume work. Such facts warranted the inference, if the jury thought proper to draw it, that Dr. Bourne was an attending surgeon; though they are compatible, too, with defendant’s theory.

3. Bourne’s right to employ Smith is still more earnestly questioned; but we think that issue was for the jury under the evidence. The passage of the answer recited in the statement of facts alleges that the relief department had the option to furnish members surgical attention when injured, or refrain from doing so, but that the practice was to allow the injured member to select Ms own surgeon. Dr. Bourne testified that while it was customary in certain cases to pay bills for treatment, it paid them only when the member was disabled by an accident.. Further, he said, in effect, that if he was satisfied the surgery a member was receiving was unskillful, he would malee a report of it; that the relief department could advise as to the surgeon but could not change one against the patient’s will. Moreover, the regulations of the department directly empowered medical examiners to certify bills for surgical treatment; and those facts, while they do not conclusively prove Dr. Bourne was authorized to employ Dr. Smith, warrant the inference that he might do so without exceeding Ms duty; and, in fact, his authority was practically admitted when the answer said the relief department might, if it deemed best, employ surgeons for disabled members. • There is evidence to show this right was exercised in this instance, whether it ever was in any other'or not; and as the pleadings and evidence stand, a case was made for the jury as to whether the defendant was remiss in performing its duty. What its duty was we will now inquire.

4. Granting that the plaintiff was negligently and unskillfully treated by physicians employed by the defendant company, the question arises whether the company’s responsibility is to be determined by the doctrine of respondeat superior; in other words, whether the defendant is liable for their malpractice if it was reasonably careful in-selecting them; or is only liable if it was not careful in that respect.

In seeking to answer this principal inquiry according to some appropriate rule, close attention should be paid to the particular facts before us in comparison with the precedents cited, in which we find several rules of decision prescribed in cases analogous to this one, but different in important circumstances.. We are referred to a line of decisions holding that hospitals and other bodies politic intended for charitable purposes, or to assist in the performance of §ome function of government without expectation of profit, are not responsible for the negligence of servants and employees unless they are remiss in choosing them. Among cases which applied that rule to establishments because they were charities are: McDonald v. Hospital, 120 Mass. 482; Benton v. Hospital, 140 Mass. 13; Haas v. Society, 26 N. Y. Supp. 868; Pryor v. Hospital, 15 N. Y. Supp. 621; Maxmilian v. Mayor, 62 N. Y. 160; Downs v. Hospital, 101 Mich. 555; Perry v. House of Refuge, 63 Md. 20; Mias’ Admr. v. Hospital, 97 Va. 507; Heriot’s Hospital v. Ross, 12 Clark. & F. 507. Judgments exempting the defendants from responsibility in the following cases, some of which were for negligent attention in hospitals, were rested on the rule of the non-liability of persons or corporations performing a public duty, for the torts of agents and servants: Murtaugh v. City of St. Louis, 44 Mo. 479; Richmond v. Long, 17 Gratt. 375; Ford v. School Dist. 1 L. R. A. 607; Williamson v. Industrial School, 95 Ky. 251; Williams v. Indianapolis, 60 N. E. 367; Brown v. Vinalhaven, 65 Maine 402; Sherburne v. Yuba County, 21 Cal. 113; Summers v. Davies County, 103 Ind. 262; Gilbert v. Trinity House, L. R. 17 Q. B. 795. In numerous cases the exemption of eleemosynary trustees and corporations from the rule of respondeat superior is put on the ground that they hold their funds in trust for designated uses of a charitable nature, and that if the funds were taken to compensate for the torts of servants they would be diverted from the ends intended by the founder, whether the founder be the State or an individual.

In opposition to this doctrine it has been pointed out that the same principle, logically extended, would exempt such bodies from liability for any tort of a servant; whereas, there are various torts for which all employers are held responsible even though they are engaged in public charity. Stewart v. Harvard College, 12 Allen 58; Davis v. Society, 129 Mass. 367; Bleachinska v. Misson, 9 N. Y. Supp. 679; Gilbert v. Trinity House, supra. The result has been that the later judgments have apparently renounced the notion that whatever immunity from the law of respondeat superior is enjoyed by those bodies, is allowed in order to protect trust funds and public money from outlays not contemplated by the donor or the Legislature. Mercy’s Dock’s Trustee v. Gibbs, L. R. 1 H. L. 93; Powers v. Hospital, 109 Fed. 294; Herns v. Waterbury Hospital, 66 Conn. 98; Foreman v. Mayor of Canterbury, L. R. 6 Q. B. 214; Coe v. Wise, 5 B. & S. 440; Winch v. Conservators of Thames, L. R. 7 C. P. 458. Recent cases which exonerate chaiitable institutions from liability for certain negligent acts of employees, such as unskillful treatment or nursing, appear to do so on the theory that a patient in accepting gratuitous attention of that kind assumes the risk of injury by the carelessness of employees. Powers v. Hospital, supra, and cases cited. Other courts, in total dissatisfaction with the rule and its various reasons, have repudiated it altogether and hold those bodies as much subject as others to the doctrine of respondeat superior. Giavin v. Hospital, 12 R. I. 411.

The exception to the rule of respondeat superior, allowed when an injury occurs from the negligence of a servant employed by trustees or by a body politic engaged in discharging a governmental function, was considered in many of the cases cited; among others by the Supreme Court of Missouri is Murtaugh v. City of St. Louis, 44 Mo. 479, an action instituted by the plaintiff Murtaugh against the city of St. Louis for the misconduct of servants in the city hospital which caused •injury to him. The city was held not answerable for the misfeasance, in deference to a rule thus stated:

“Where the officer or servant of a municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence or misfeasance of such officer or servant, the corporation is liable, as in the case of private corporations, or parties; but when the acts or omissions complained of were done or omitted in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, then the corporation is not liable for the consequences of such acts or omissions on the part of its officers and servants.”

We have paid more attention to the foregoing authorities than we think they deserve for present purposes, because they are all relied on by the defendant as exactly in point, whether they deal with institutions purely charitable, like hospitals, or with bodies created to serve the State in handling its funds for the benefit and convenience of the public at large, such as road commissioners and dock trustees. But in our judgment neither class of decisions is in point. It is obvious, of course, that neither the defendant railroad company nor its relief department is the trustee of public funds put into its hands to use in a prescribed manner. But the argument is pressed that the relief department, organized and controlled by the company, was of a charitable nature and, hence, by the principle of some of the cases, the defendant is exempt from liability for the negligence of the surgeons, even though they treated the plaintiff under its employment, unless it was negligent in selecting them. Some countenance is lent to this contention, which would otherwise strike us as plainly fallacious, by the opinion of the United States Circuit Court in Artist v. Union Pacific Railroad Co., 60 Pac. 365, in which an arrangement in most respects similar to the one in hand was regarded as a charitable enterprise.

The test of whether such an enterprise is charitable is said to be its purpose, and if the purpose is to make a profit, it is not charitable; if it is to relieve the sick or disabled without gain, it is charitable. The definítion of a charity, given in Jackson v. Phillips, 14 Allen 556, is generally accepted, and is as follows:

“A charity, in the legal sense, may be more fully defined as a gift to be applied, consistently with existing laws, for the benfit of an indefinite number of persons, either by bringing their minds or hearts, under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to- establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government.”

Of similar import to the Artist case is that of Fire Insurance Patrol v. Boyd, 132 Penn. St. 624; but all others we have seen are to the contrary.

In our judgment the relief department, organized by the defendant company, in view-of the regulations provided for its government, can not be classed as a charity without doing violence to every significance that word bears, either in popular or legal usage. It is not a charity within the definition of Justice Gray, above quoted, because the fund administered is not a gift by the employees who make contribubutions; much less by the railroad company, which does not make any, unless a deficit occurs. The fund is made up from sums contributed by members for their mutual benefit and is to be enjoyed by them if they suffer from sickness or accident. It is, in effect, a provision made by the employees to insure a stipend for them to live on if they are disabled, and a benefit to their families if they die. In addition to this, if disabled by accident, their medical attendance is paid out of the fund. This strikes us as a purely business arrangement on the part of the employees of the railroad company. But to call the enterprise a charity on the part of the company itself, is extravagant, when we note that one of its purposes, as carved in high relief on the face of the regulations, is to prevent damage suits. Enterprises much' more benevolent have, been excluded from the list of charities hy the courts. Chapin v. Y. M. C. A., 165 Mass. 280; Donnelly v. Association, 146 Mass. 163; Newton v. Protective Assn., 151 Mass. 215.

In the Newton case, an association much like the one dealt with in Fire Ins. Patrol v. Boyd, was ruled to he a private business enterprise. In the Donnelly ease, a private cemetery association which earned no profits and declared no dividends, was held to be a private business company and liable for the negligence of a grave-digger whether carefully selected or not. In the Chapin case the Young Men’s Christian Association was decided to be not so entirely charitable as to exempt it from responsibility for its servants’ torts, though it is largely charitable and in no sense commercial. To give such organizations as the one before us the legal status of a charity and determine the employer’s liability on that theory, is not only illogical, but must ultimately prove pernicious by subverting to commercial and selfish uses, principles of law designed to protect only benevolent institutions. We decline, therefore, to accede to the argument of defendant’s counsel, that plaintiff has no case because, if treated by the company’s physicians, he was the recipient of charity.

5. The petition charges that the defendant bound and obligated itself to furnish the plaintiff, as a member of the relief department, competent and skillful surgeons to wait on him, and if such a contract was in fact made, defendant is, of course, answerable if it failed to perform; that is to say, if it furnished a surgeon whose lack of, skill resulted in injuring the plaintiff. Ward v. St. Vincent’s Hospital, 57 N. Y. Supp. 784; Richardson v. Coal Company, 20 L. R. A. (Wash.) 338. But no evidence was adduced to show that any such contract or obligation- was ever created by express words, and if one existed it arose by implication from the regulations of the relief department. ■ Those regulations imposed no duty on the railroad company or its relief department to furnish surgeons, skilled or otherwise, for sick and disabled members. All that is said bearing on that matter is, that the medical examiners may certify bills for surgical attendance and that members accidentally hurt are entitled to payment of such bills if approved by the medical examiner. This, of course, in no sense deprives the member of the right to select a surgeon himself, nor makes it incumbent on the relief department to furnish one. But for the statement in the answer that the relief department in its discretion could either furnish the members surgery or pay bills incurred therefor by the members themselves, the record would be barren of evidence tending to show the relief department of the railroad company had any power or duty in respect to furnishing medical attendance to injured members. The effect of that admission is that the company might furnish attendance, but was not bound to do so.

6. But' we have held there was evidence tending to prove that in this instance the railroad company did hire surgeons to treat the plaintiff, though there was none to show he did not willingly accept them or preferred any one else. Unquestionably 'if it undertook to supply plaintiff with surgical attendance or deprived him of a choice in the matter, it was bound to employ reasonable care to get men of average skill. But did its obligation end there? As we have seen, to be exempted from the rule of respondeat superior, some other ground of immunity must be found than that it was conducting a charity.

Underlying the various decisions and discussions, of the subject is, we think, the unwillingness of courts to widen the scope of the doctrine of respondeat superior so as to embrace a case like this. Hearn v. Hospital, 66 Conn. 98. That doctrine is one of recent origin and is enforced as a measure of public policy; probably because employers are generally financially responsible and employees are not. In so far as it is justified by principle at all, it is on the assumption that a master can control his employee’s acts, expects to derive a benfit from them, and, therefore, should be held responsible if they result in injury to others. Modem conditions make it imperative to hold many employers responsible for the torts of their servants as a means of enforcing care in the prosecution of dangerous enterprises and the handling of dangerous implements and machinery. Eailroad companies must see that their servants are cautious in operating trains, make all needful regulations, select their employees with that end in view and discharge them when they are careless and unskillful. The application of the rule in question is especially called for when the misfeasance of the employee happens while he is engaged about the main business of his employer. In cases like this the surgeon is not regarded as sustaining, in full measure, the relation of servant to the railway company. That relation carries the right of direction and control of the servant by the master as to the mode in which the former shall do his work; and when an employer, instead of reserving in terms or by implication the right of direction, contracts for the exercise of independent judgment and skill on the part of the person employed, the latter is often regarded as a separate contracto;* and alone responsible for his torts. Mound City Paint Co. v. Conlon, 92 Mo. 221; Andrews v. Boedecker, 17 Ill. App. 213; Robertson v. Webb, 11 Ky. 464; Wiltsie v. Bridge Co., 63 Mich. 639. This doctrine has been accepted as the rule of decision in controversies like the one in hand. Pearl v. Railroad, supra; Quinn v. Railroad, supra; Myers v. Hoffman, 58 N. J. L. 193.

The defendant company was not primarily engaged in ministering to sick and disabled persons for profit, but when it gave such ministrations did so as an incident to its regular business. There is little likelihood of railway companies, or other employers, becoming careless in the selection of physicians to wait on employees; and as their business managers and superintendents are not selected for their expert knowledge of medical and surgical matters, they are unfit to supervise the woi'k of physicians, and, therefore, the doctrine of respondeat superior can not well be applied to such matters. We think these are the real reasons why the courts have refused to extend the rule to them; and we need not be troubled because this course is inconsistent with the general doctrine that masters are answerable for the torts of servants, since the law aims at practical rather than theoretical ends, and regulates acts with reference to their consequences instead of their logical connection. The precedents, without exception, hold that unless the evidence shows want of care in the selection of the surgeon, the servant injured by malpractice has no recourse against his employer. Maine v. Railroad, 109 Iowa 553; York v. Railroad, 98 Iowa 554; Donald v. Railroad, 93 Iowa 284; Eighmy v. Railroad, 93 Iowa 538; Atchison, etc., Ry. v. Zeiler, 54 Kan. 340; Clark v. Railroad, 48 Kan. 654; Railroad v. Sullivan, 141 Ind. 83; Railroad v. Price, 37 Fla. 46; Quinn v. Railroad, 94 Tenn. 715; Artist v. Railroad, supra; Pierce v. Railroad, 66 Fed. 44; Secord v. Railroad, 18 Fed. 221; Railroad v. Howard, 45 Neb. 570; Allen v. Steamship Co., 132 N. Y. 91; O’Brien v. Cunard Co., 154 Mass. 272. The cases against steamship companies arose under an act of Congress imposing on those companies the duty to keep a competent physician on each ship to wait on sick passengers. The construction given to that statutory duty is, that it extends no further than the exercise of reasonable care to get a competent, physician, which being done, the company is not responsible for damages caused by his unskillful treatment of a patient.

Maine v. Railroad Co., 109 Iowa 551, passed on the very arrangement before us in this ease, to-wit, the voluntary relief department of the Burlington Railroad Company and its regulations. The conclusion reached was, that the duty of the company by virtue .of said regulations is.the exercise of care in the selection of a physician, if it undertakes to furnish one. This was also the decision in Eighmy v. Railroad Co., and Railroad Co. v. Zeiler, supra, and several other cases cited above which differ from the present case in no important particular. To the same effect are the text-books. 1 Elliott on Railroads, sec. 223; 3 Elliott, sec. 1388.

It follows from the above considerations and authorities that the circuit court erred in refusing the instruction requested by defendant which is set out in the statement, and in giving several instructions asked by the plaintiff. The case should have been tried on the theory pointed out, to-wit, that the liability of-the defendant depends on whether it exercised due care in selecting physicians to wait on the plaintiff, if it furnished him with physicians. Instead of that theory being followed, the effect of the instructions to the jury was to leave it entirely out of view and to hold the company liable for the surgeons’ incompetency, however cautiously they may have been chosen.

The judgment is reversed and the cause remanded.

Bland, P. J., and Beyburn, J., concur.