Hays v. Wabash Railroad

119 Mo. App. 439 | Mo. Ct. App. | 1906

BLAND, P. J.

(after stating the facts). — 1. ' In meeting the train at the Hannibal depot, in response to the conductor’s telegram, taking charge of Saint and removing him to the hospital and there treating him for such reasonable time as the defendant’s claim agent could have been notified of the case and his answer returned, the plaintiff acted strictly within the terms of section 8 of the book of rules, and, as he did not agree to render gratuitous services for the defendant, is clearly entitled to recover the reasonable value of his services rendered during such time.

2. Sections 11 and 3 of the book of rules read as follows :

“11. The hospital, dispensary and local surgeons who have heretofore, or may hereafter be appointed by the chief surgeon of the hospital association to such positions in connection with the Hospital association, are hereby appointed local surgeons of this company for the care and treatment, under the rules hereinbefore established, of all passengers, citizens and non-employees who may be injured by this company’s lines, and they should be summoned if possible in all such cases, and as such will be respected and assisted in the discharge of their professional duties, when called upon.

“3. The company hereby donates to the hospital association the use of its telegraph and train service to facilitate the care and treatment of sick or injured employees, and, therefore, all persons in this company’s service, and all others, are hereby notified that no bills for medical or surgical services, nursing, drugs or funeral expenses will be paid by the company, unless the same are first authorized by the general claim agent.”

Section 3 is inapplicable to cases of injuries to passengers. It only refers to and includes the employees of the company, and the plaintiff, as local surgeon of the company, could only look to sections 8 and 11 for his authority to treat Saint and rely upon the company for compensation; and it is plain that under these rules he had authority, in the first instance, to treat Saint at the expense of the company, and the question arises when, if at all (before plaintiff’s discharge as local surgeon) did his authority cease. The uncontradicted evidence is that it was his duty to report the case to the general claim agent of the company, and he failed to make such report though furnished with blanks for the purpose. The report to Dr. Moorehouse did not excuse his failure to report to the general claim agent, whose testimony is that he alone had authority, after receiving such report, to determine whether or not an injured passenger should be professionally treated by the company’s surgeon. Plaintiff did not deny the existence of this rule or custom of the company, but sought to avoid its effect by evidence that O’Donnell and Austin visited Hannibal to investigate the facts of the injury, and O’Donnell made a personal request of him (plaintiff) to cure Saint. But it turned out that O’Donnell’s agency did not include jurisdiction over personal injury cases, and for this reason the company is not bound by his personal request to plaintiff. It is not shown by the evidence that Austin, who had jurisdiction in personal injury cases, made any request whatever, or said anything to plaintiff about treating Saint. There is nothing in the evidence to show that the general claim agent waived the rule or custom of the company, in the Saint case, requiring that surgeons should make a report to him; in fact, the general claim agent testified that he never heard of the case until he heard of it through plaintiff’s attorney. Under this evidence, it seems to us that plaintiff’s recovery should be confined to services rendered in the circumstances stated in the first paragraph of this opinion. The judgment is reversed and the cause remanded.

All concur.