Opinion
No. 27589.
February 4, 1929.
1. PLEADING. Defendant, sued for surgical and medical services, held entitled to "bill of particulars" showing each visit by doctor and charge therefor ( Hemingway's Code 1927, section 531).
In action for surgical and medical services rendered, where one count was for professional services rendered person named, including setting fractured left thigh and after attention amounting to one hundred and fifty dollars, and the other count was for accompanying person to hospital and suturing and dressing wounds twenty-five dollars, for calls attending patient at hospital twenty-four dollars and for removal of stitches at hospital one dollar, defendant was entitled to bill of particulars, and anything less than an itemized statement setting out each visit made by doctor and charge therefor would not be a "bill of particulars," under Code 1906, section 734 (Hemingway's Code 1927, section 531.)
2. PLEADING. In action for surgical and medical services, court erred in admitting physician's testimony in absence of itemized account ( Hemingway's Code 1927, section 531).
In action against railroad company for medical and surgical services rendered persons injured in collision, court erred in admitting testimony of physician, in absence of itemized account setting out each visit made by doctor and charge therefor, under Code 1906, section 734 (Hemingway's Code 1927, section 531).
3. PRINCIPAL AND AGENT. Neither agency for railroad of one requesting physicians to attend persons injured by train nor scope of agency could be proved by agent's declaration.
In action for medical and surgical services rendered to persons injured by train, plaintiffs could not prove that one requesting them to attend injured persons was claim agent of railroad company, nor the scope of his agency, by declaration of agent.
4. RAILROADS. Railroad was not liable to physician requested by agent to attend injured persons for services rendered beyond emergency, in absence of contract.
Railroad company was not liable for services of physician, attending persons injured by train at request of railroad's claim agent, rendered beyond emergency, where physician attended one person for six weeks after his injury and another for a shorter time, unless physician had contract with railroad company, either expressed or implied, covering such services.
APPEAL from circuit court of Leflore county, HON. S.F. DAVIS, Judge.
Gardner, Odom Gardner and Alfred Stoner, for appellant.
It was contended by defendant that T.M. Curry was not shown by the evidence, to have any authority to employ physicians, and that, even though authority be imputed to him to make such employment in cases of emergency, the right of the physician to demand compensation for his services ended with the ending of the emergency.
It was shown that Dr. Yates treated the patients for a long time after the exigency ended and sued the railroad company for the entire account.
According to the earlier authorities the officers of corporations had no authority to employ physicians, even in emergency, but the trend of the modern authorities is to the effect that such authority will be imputed to agents of corporations in cases of emergency, upon the ground of expediency, provided that it be shown that the contract of employment was made by the highest official "on the ground" at the time of the accident. However, none of the courts, insofar as we have been able to find, have carried the liability further than the end of the emergency. After the emergency ends all of the authorities absolve the railroad companies from liability to physicians for further treatments.
In the case at bar the accounts sued on were not itemized and it was, therefore, impossible to tell from the accounts, the extent of the liability of the defendant, if any. It will be observed that one account makes charge for setting a fractured leg and "after attention" but does not state the amount charged for setting the leg, nor for "after attention," and the other account makes charges for dressing and suturing wounds, plus twenty-four dollars for calls at the hospital and plus one dollar for removing stitches. Dr. Yates testified that he called to see the patients at least twice a day for two or three weeks, and that in ordinary cases he charged three dollars a visit but did not do so in this instance. We submit that certainly the accounts should be itemized, since plaintiff, if he recover at all, must recover on a quantum meruit.
The accounts, not being itemized, no testimony relative to them was admissible. Finch v. Brewer. 133 Miss. 9, 96 So. 402; Wolff v. Hopkins (Miss.), 111 So. 290.
The testimony upon which plaintiff relied to establish his contention that Mr. Curry was an agent of the defendant was clearly incompetent. Over the objection of the defendant, Dr. Yates was permitted to testify that Mr. Curry said that he was claim agent for the defendant. Walters v. Stonewall Cotton Mills, 101 So. (Miss.) 495; Dunlop v. Hearn, 37 Miss. 471; Atwood v. Meridit, 37 Miss. 635. See, also, So. Ry. Co. v. Brister et al., 79 Miss. 761, 31 So. 440.
In the last-cited authority the railroad company was held liable for emergency treatment on the ground that the physician was employed by the station agent acting on special instructions from the train master, the station agent having gotten his special authority by telegraph, and it was also proved that the train master had authority to employ physicians in cases of emergency, and that the train master acted under authority from the general superintendent. 1 Elliott on Railroads, secs. 260, 411 et seq.; Williams v. Brickell, 37 Miss. 682, 75 Am. Dec. 88.
With reference to the right of an agent of a railroad company to employ a physician in cases of an emergency, see Atlantic Refining Co. v. Leffingwell, 34 L.R.A. (N.S.) 351, and annotations. Bedford Belt Ry. Co. v. McDonald (Ind.), 60 Am. St. Rep. 172; Salter v. Nebraska Tel. Co., 13 L.R.A. (N.S.) 545.
Kimbrough, Tyson Kimbrough, for appellee.
One of the contentions of appellant is that T.M. Curry was not shown by the evidence to have been the claim agent of the appellant railroad company, and this contention apparently assumes that the only testimony in the record proving or tending to prove this fact was that of Dr. Yates, in which he stated that "he has told me," in response to the question, "You don't know really of your own knowledge that he is claim agent for them?" If this was the only testimony in the record as to Mr. Curry's agency, then the contention of the appellant railroad company that agency has not been proven might be correct, since, of course, agency can never be proven by the declaration alone of the agent himself, but this rule so far as it applies to the admissibility and competency of such declaration in evidence is qualified to the extent that if there is other competent evidence in the record proving or tending to prove such agency, the declaration of the agent as to his agency is admissible. This was the situation in the case at bar, since the agency of Mr. Curry was proven clearly and unequivocally by further positive statements of Dr. Yates to that effect and entirely independent of Curry's declaration that he was such agent.
Another contention of appellant is that even if Curry was the agent of the railway company, yet, nevertheless he did not have authority to employ Dr. Yates, because he, Curry, was not shown to be the "highest authority on the ground," and to sustain the contention that this is the rule in Mississippi, the case of So. Ry. Co. v. Brister, 79 Miss. 761, is cited. This case did not discuss the question of whether or not it was necessary for the highest authority available to authorize surgical or medical services in order to impose liability upon the railroad company and consequently established no rule on this subject in Mississippi. The case was decided upon the presumed fact that a train master acting as a division or local superintendent had sufficient authority. No question was raised as to whether or not he was the highest authority available or whether it was necessary for him to be such in order to fix liability upon the railroad company. The court did not consider the question of whether if he had not been the highest authority, the liability of the railroad company would or would not have existed.
Appellant also contends that even if Curry had authority to employ Dr. Yates that the period of employment could not have extended beyond the period of "the emergency" and that consequently the railroad company was in no event liable for that part of the services rendered by Dr. Yates during a certain period of time covered by his "after attendance" upon the patients. But see 21 R.C.L. 414, par. 56; Burnette v. St. L., I.M. So. R.R., 16 L.R.A. (N.S.), 1081; Reynolds v. Chicago, etc., R.R. Co., 90 S.W. 100.
Appellants contend further that it was error to admit any evidence as to the subject of the suit because it consisted of accounts and as such were not properly itemized. We submit that the accounts were sufficiently itemized because the services rendered were rendered under an express oral contract, and because they could not be more particularly itemized than they were as shown by the testimony of Dr. Yates. This testimony shows clearly that both of these were surgical cases and that for a surgical case a lump charge is made which "includes all attention." And that in "a surgical case you cannot separate visits and ethically do so." It is obvious from this and other testimony of Dr. Yates that in the practice of his profession it was not customary to charge in separate items for "after attention" given surgical cases, as were the ones in the case at bar, and this being true it was not necessary nor was it possible to itemize these accounts with greater particularity than was done and no rule of law imposes such a requirement under the circumstances.
Appellee, a partnership of physicians, brought two separate actions in the court of a justice of the peace of Leflore county against appellant, one of which was to recover of appellant the sum of fifty dollars for surgical and medical services rendered one Mike Buford by appellee at the alleged request of appellant, and the other for one hundred fifty dollars for surgical and medical services rendered Julius Steen by appellee at the alleged request of appellant; both Steen and Buford having been injured in a collision between an automobile in which they were driving and one of appellant's passenger trains. The cases were tried by the justice of the peace and judgments rendered in appellee's favor for the amounts sued for. From those judgments appellant appealed to the circuit court of Leflore county. After the cases reached the circuit court, they were, by order of that court, consolidated and tried as one case; the parties being the same and the evidence in each being substantially the same on the question of whether there was liability on the part of appellant for the amounts sued for. There was a trial in the circuit court resulting in a directed verdict and judgment for appellee. From that judgment appellant prosecutes this appeal.
W.B. Pentecost, Julius Steen, and Mike Buford together in an automobile attempted to cross appellant's railroad track near the city of Greenwood. One of appellant's passenger trains struck the automobile while attempting to cross the track, resulting in the death of Pentecost and the serious injury of both Steen and Buford. Thereupon, appellant's passenger train stopped, took Steen and Buford aboard, and carried them to Greenwood, where they were met at appellant's depot by Dr. R.B. Yates, one of the partners in appellee, who, appellee claims, at the request of T.M. Curry, appellant's claim agent, took Steen and Buford to the Kings Daughters Hospital in Greenwood for surgical and medical treatment, where they were treated by Dr. Yates for some weeks thereafter.
Appellee sought to hold appellant liable for the surgical and medical services rendered by it to Buford and Steen, upon the ground that the services arose out of such an emergency that it became the duty of appellant, which duty it assumed, of procuring and paying for the necessary surgical and medical attention for Buford and Steen. Appellee demanded of appellant the sum of one hundred fifty dollars for surgical and medical services to Steen, and fifty dollars for like services to Buford, which appellant refused to pay. Thereupon, appellee embodied its claim for the services in two accounts, one for one hundred fifty dollars for the services to Steen, and the other for fifty dollars for the services to Buford. Both of the accounts were sworn to and were the basis of the two separate actions brought in the court of the justice of the peace, which actions were consolidated, as stated, when the cases reached the circuit court. The Steen account set out the items of appellee's services as follows:
"To Professional services rendered Julius Steen (Dr. Yates) including setting of fractured left thigh at Kings Daughters Hospital, Greenwood, Mississippi, and after attention, one hundred fifty dollars."
In the Buford account they are set out in this manner:
10/29/25 Attending Mike Buford at Columbus Greenville R.R. Station, accompanying him to Kings Daughters Hospital, and suturing and dressing wounds (Dr. Yates) ............................... $25.00 10/29 to 11/2 Calls, attending Mike Buford at hospital (Dr. Yates) ........................................... 24.00 11/2/25 Removal of stitches at hospital .................... 1.00 ______ Total ........................................ $50.00 It will be noted that one item of the Buford account is "calls, attending Mike Buford at hospital (Dr. Yates), $24." And that the Steen account contains only one item of one hundred fifty dollars for setting Steen's thigh and "after attention." Dr. Yates testified on behalf of appellee and was the only witness who testified in the case. He testified that he set Steen's thigh and visited him twice daily in the hospital for six weeks, and the usual charge for such visits was three dollars each; and that he sutured one or more of Buford's wounds and visited him twice daily in the hospital for two or three weeks. Dr. Yates' evidence, fairly interpreted, meant that the one hundred fifty dollars charge for services rendered Steen included not only the setting of his thigh, but his visits to Steen which continued thereafter for six weeks. And that the item in the Buford account of twenty-four dollars for attending him at the hospital covered a period of time of several days.Appellant objected to Dr. Yates' evidence to establish the accounts upon the ground that they were not itemized as required by section 734, Code 1906, Hemingway's Code of 1927, section 531. Appellant's objection was overruled by the court, to which action of the court appellant excepted. That ruling of the court is the ground of one of appellant's assignments of error. Section 734, Code of 1906, Hemingway's Code of 1927, section 531, is in this language:
"There shall be annexed to or filed with the declaration in every case founded on an open account, a copy of the account or bill of particulars of the demand; and in actions founded on any writing, a copy of such writing, with the names of subscribing witnesses, if any, shall be annexed to or filed with the declaration; and evidence thereof shall not be given on the trial unless so annexed or filed; and the same shall constitute a part of the record of the cause."
Under the statute appellant was entitled to a bill of particulars of appellee's demand, in order that appellant might intelligently make defense thereto. Anything less than an itemized account setting out each visit made by Dr. Yates and the charge therefor would not be a bill of particulars. When the statute is not complied with in that respect, by its express language no evidence is admissible to establish the account. Finck Co. v. Brewer, 133 Miss. 9, 96 So. 402; Wolff v. Hopkins, 145 Miss. 827, 111 So. 290. It follows that the court erred in admitting the testimony of Dr. Yates in the absence of such an itemized account.
The court permitted Dr. Yates, for the purpose of establishing the fact that T.M. Curry, who requested appellee to take charge of and administer to Steen and Buford, was the claim agent of appellant, to testify, over the objection of appellant, that Curry told the witness that he (Curry) was the claim agent of appellant. In so holding the court erred. Neither agency nor the scope thereof can be proven by the declaration of the alleged agent. Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495. It is unnecessary to determine whether there was sufficient other evidence to establish Curry's agency for appellant in view of the fact that the judgment must be reversed.
The court refused appellant's request for a directed verdict in its favor, which appellant contends it was entitled to upon two grounds: First, that there was no legal evidence of the absence of a bill of particulars; second, because taking the facts to be true which appellee's evidence tended to show, a case of emergency had not arisen which, under the law, made it the duty of appellant to become responsible for the surgical and medical attention rendered Buford and Steen by appellee. We have already disposed of the first ground. 1 Elliott on Railroads, section 260, p. 411 et seq., states the principles of law governing the second proposition as follows: "It may be affirmed that the employment of a physician or surgeon is not ordinarily within the scope of the authority of a subordinate agent or employee, but that there may be extraordinary cases giving authority to employ a surgeon or physician. Neither a road master, section agent, yardmaster, nor station master, will be presumed to have authority to employ a physician to attend a servant of the company injured in the line of his duties. So, also, it is held that there is nothing in the duties of the company's solicitor, or surgeon, or engineer, or conductor, from which such authority can be presumed. But an emergency calling for immediate action, in order to save life, or prevent suffering may be sufficient to confer authority upon the subordinate to employ necessary surgical aid, if he is the highest representative of the company on the ground. There may be cases of immediate urgency when it will be within the scope of the agent's employment to render those imperative services which the dictates of justice and humanity hold to be due from an employer to a servant injured while engaged in his service, and not only this, but in cases of urgent emergency it may become his duty to take such measures as will prevent needless suffering and loss of life. And even though the agent had no authority to engage a physician, such an employment may be ratified, and it is held that a physician employed by the conductor of a train to care for a man injured by the train can recover against the railroad company for his services, if after knowledge of his employment by the conductor, the company failed to notify him that it would not be responsible. The authority of such a subordinate agent, however, arises only with the emergency which makes it necessary for him to possess it, and ends with such emergency."
The courts have not confined these principles alone to injured employees; they have been extended to passengers and others not in the employment of the railroad company. 21 R.C.L. 414, 415, par. 56; Bonnette v. St. Louis, I.M. S.R. Co., 87 Ark. 197, 112 S.W. 220, 16 L.R.A. (N.S.) 1081, 128 Am. St. Rep. 30; Southern Ry. Co. v. Humphries, 79 Miss. 761, 31 So. 440, involved the question of the liability of the railroad company for professional services of a physician to an injured servant of the railroad company needing immediate surgical attention. But the liability of a railroad company does not go beyond the emergency, the services of the physician are to be extended for a sufficient time for the physician employed to communicate with the railroad company, and, if the railroad company declined to be responsible beyond the emergency service, have time to give notice to the proper poor authorities if the injured person be entitled to public care. If the physician desires to hold the railroad company responsible for such services, he must make a special contract with the company covering them. Salter v. Nebraska Telephone Co., 79 Neb. 373, 112 N.W. 600, 13 L.R.A. (N.S.) 545. Under these principles, in attending upon Steen for six weeks after his injury and Buford a shorter time, but for several days, appellee was not performing emergency services, and therefore appellant was not bound to pay appellee for such services, unless appellee had a contract with appellant, either expressed or implied, covering such services.
Reversed and remanded.