Southern Railway Co. v. Humphries

Terral, J.,

delivered the opinion of the court.

This is a suit by Drs. Brister & Humphries, physicians and surgeons, against the Southern Railway Company, in Mississippi, for services to Asbery Crosby, an employe of said company. On October 30, 1900, Crosby, an employe of the company, while engaged in its service, was run over by one of its trains, and was seriously, and, as it soon proved, fatally, injured. The injury happened at or near Greenwood, Miss., and Crosby, being in Greenwood, De Hart, the company’s station agent there, vsent a call to Dr. Humphries, whose services in like cases the company had before refused to compensate; and he informed De Hart that he would attend the injured employe if De Hart would be responsible for the fee. De Hart asked him to wait a little, and, as we infer, placed the case before the train master, Francis, who wired Dr. Humphries to take charge of the case for the fee of $100, unless he was appointed the company’s surgeon. Dr. Humphries attended the wounded man, gave him all necessary medical attention, and procured and paid for other necessary care and nursing of him, and after a few hours the patient died. The company, not having engaged Dr. Hum-phries as one of its surgeons, he brought suit for the agreed fee of $100, and recovered a judgment therefor, and from the judgment the company appeals.

The record discloses that plaintiffs below proved their contract with Francis for the payment of the fee of $100, their performance of their part of the contract, and the breach'by the defendant. They also proved by Mr. Dunn, a former employe of the defendant, that he knew Francis, the train master, and that he had authority in emergencies to employ a surgeon temporarily, and that Francis also acted under the superintendent, and performed the duties of local superintendent. This evidence was not objected to or controverted. So far as we can gather from the record, De ITart was the only officer of the Company immediately on the spot. He evidently referred the matter to Francis, who, we must presume, was the next officer of authority within reach, and who had the means of knowing all that De Hart knew about the case, as Crosby was in the room of the depot, and with him the contract was made for the Company. The company had surgeons in its employ, but they were not in call. From that fact we infer the company recognized its duty to employes injured in its service. Now, it is admitted that Francis might, perhaps, employ a surgeon in an emergency; and Crosby was desperately wounded, and had lain some hours without surgical aid, and no emergency to him to have a surgeon could be greater. We incline to the view that, under the circumstances of this case, and upon the evidence contained in the record, Francis had authority to bind the company, and the contract made was valid and enforceable. In Railroad Co. v. Thomas, 19 Kan., 256 (20 L. R. A., 696), note, it was held that a division superintendent will be presumed to have authority to employ a physician to attend an employe who has been injured while in the service of the company. Whether Francis, as train master, had authority to contract with Dr. Humphries as he did, we are not here called to decide: but, inasmuch as at the time he was in the exercise of the functions of a division, or local, superintendent over that part of jthe road, we think it may be presumed that he had the power to so contract. Moreover, Dunn testified that Francis had such authority, and his testimony is not controverted or denied. This evidence, of itself, was sufficient to support the verdict.

Affirmed.