
    The Youngstown Park & Falls Street Railway Co. v. Kessler.
    
      Contract by street railway corporation — To perform medical services — Not only ultra vires but void — Such corporation not liable in damages for malpractice in surgery — May contract to furnish medical services- — Petition for recovery of damages — Against corporation for malpractice — Does not state cause of action, when.
    
    1. A contract to perform medical or surgical services by a corporation organized for the purpose of constructing, owning and operating a street railway, is not only ultra vires, but is in direct conflict with the laws of this state regulating the practice of medicine and surgery and is, therefore, void.
    2. Such a corporation cannot be directly liable for damages for malpractice of medicine or surgery.
    3. Such corporation may make a valid contract to furnish or pay for medical aid and attention to one injured upon its cars or tracks, and an action against it for damages for a breach of such contract may be maintained.
    4. A petition that avers the making of such contract, the employment by the company of a surgeon in pursuance of such contract and malpractice on the part of such surgeon resulting in damages to the plaintiff, but which does not aver that the person so employed was not regularly admitted to practice medicine and surgery in Ohio, or that he was incompetent and the company knew, or had means op knowing of his incompetency, or that it was otherwise guilty of negligence or carelessness in selecting him to perform such service, does not state a cause of action.
    (No. 11656
    Decided April 18, 1911.)
    Error to the Circuit Court of Mahoning county.
    On the first day of July, 1905, the defendant in error filed her petition in the common pleas court of Mahoning county, seeking to recover a judgment for damages against the plaintiff in error, The Youngstown Park & Falls Street Railway Company, to which petition this plaintiff in error filed a demurrer, which demurrer was sustained. The defendant in error then filed an amended petition, to which a demurrer also was filed, and later the defendant took leave to file a second amended petition, and on the 24th day of July, 1907, did file such second amended petition averring in substance that on the 22d day of July, 1899, she was a passenger on one of the cars of the defendant company; that in alighting therefrom she received certain injuries; that “the defendant'sent its surgeon to treat her for the injuries so received, and- insisted upon furnishing the treatment necessary in and, about the injuries so received, and that in assuming such treatment said defendant contracted and agreed with plaintiff to furnish such surgical and medical attention and advice as her injuries demanded, and to correctly diagnose and treat her injuries with diligence, care and ordinary skill and for such length of time as would be necessary to make a complete recovery, to all of which plaintiff assented and defendant entered on the performance of its contract with plaintiff.’’ She then avers that the diagnosis then made by the surgeon was incorrect; that the treatment given her was not the proper treatment for the nature of the injuries she had received; that the advice given her was not proper; that she has followed this advice faithfully, but instead of recovering from her injuries, she has become a confirmed cripple; that neither medicine nor surgical treatment has been given her within the year next preceding the bringing of this action, but that plaintiff has been at all times following the advice of the surgeon and attempting to use her limb as directed by him to do, and relying upon his advice that by using the same it would eventually become well and sound, all of which has now proven to be without avail, and she avers that this was only for the purpose of getting rid of, and avoiding the carrying out of the contract made with the company. She also avers with some particularity the nature of the injury actually received by her, and the character of the treatment given her, and the extent of the injuries and damage she has suffered by reason of such improper diagnosis and incorrect advice and treatment and asks danu ages in the sum of ten thousand dollars.
    To this second amended petition, the defendant filed a general demurrer, which demurrer was sustained, and plaintiff not desiring further to amend, her petition was dismissed with costs, and error prosecuted by her in the circuit court of Mahoning county. That court reversed the judgment of the common pleas court and remanded the cause with directions to the common pleas court to overrule the demurrer. This proceeding in error is now brought in this court to reverse the judgment of the circuit court.
    
      Messrs. Norris, Jackson & Rose and Messrs. Arrel, Wilson & Harrington, for plaintiff in error.
    
      Mr. S. L. Clark, for defendant in error.
   Donahue, J.

It is contended on the part of counsel for plaintiff in error that by the provisions of Section 4983, Revised Statutes, the limitation of the time in which an action for malpractice may be brought is one year from the time of the commission of the wrong complained of, that this second amended petition shows upon its face that the diagnosis was made, and the treatment and advice given plaintiff, almost six years prior to the time of bringing this action, and that the action being barred by the statute, and the averments of the pleading clearly showing that fact, that the demurrer to the second amended petition - was properly sustained by the common pleas court.

It is sufficient to say with reference to this contention that a railroad company cannot be guilty of malpractice. It is not authorized to practice medicine or surgery, and, therefore, any contract it might make to do so would be not only ultra vires, but in direct conflict with the laws of this state regulating the practice of medicine and surgery. Therefore, the statute limiting the time in which actions for damages for malpractice may be brought has no application to this suit. No such action will lie against a railroad company, and if that is the cause of action stated in this second amended petition, then it would be vulnerable to a demurrer, not only because of the statute of limitation, but also because it does not aver facts sufficient to constitute a cause of action.

It probably does appear from a reading of this, second amended petition that the pleader intended to state a cause of action for damages for malpractice, but the intention of the pleader does not necessarily control. If there are sufficient facts pleaded to constitute any cause of action it is not important whether the pleader intended to state that particular cause of action or not. If this petition states a cause of action it must be one for a breach of contract to furnish such medical and surgical aid and attention to the plaintiff as she might require. This second amended petition does aver such a contract, but it does not clearly appear whether the pleader intended to aver an express contract, or a contract implied from the circumstances of the case and conduct of the parties. It does not aver any consideration for such a contract. So far as this pleading is concerned, the railroad company was a mere intermeddler. It sent its surgeon there without any request on her part for his services, or without any reason for its doing so, unless the fact that the plaintiff had been injured while alighting from the defendant’s car « be taken as a' sufficient reason for its having so done. There is no averment that the defendant was negligent in the management and operation of its cars or had negligently or carelessly or wrongfully caused the injury to the plaintiff. However, if it be conceded that sufficient facts are pleaded to show a valid contract between the plaintiff and the defendant by the terms of which the defendant undertook to furnish to the plaintiff the services of a physician and surgeon to treat her for the injuries she received while alighting . from its car, it also fully appears in this petition that it did furnish her a physician and surgeon for that purpose, and that he did examine her injuries, diagnose her case ánd give her treatment and -advice. Her claim is not that the railroad company failed to fúrnish- a physician and surgeon, as by the terms of its contract it had agreed and undertaken to do, but that it failed to furnish a surgeon sufficiently skilled and competent to treat her injuries.

It is not the law that one who contract's to furnish or pay for medical or surgical aid and attention to another is liable at all events for the mistakes or incompetency of the physician or surgeon he may employ for that purpose. There must be some neglect or carelessness or misconduct on his part in the performance of his obligations arising under such contract. If he act in good faith and with reasonable care in the selection of the physician or surgeon, and has no knowledge of the incompetency or lack of skill or want of ability on the part of the person employed but selects one of good standing in his profession, one authorized under the laws of this state to practice medicine and surgery, he has filled the full measure of his contract and cannot be held liable in damages for any want of skill or malpractice. on the part of the physician or surgeon employed.

There is no averment in this petition that the surgeon employed by- this defendant railroad company was not in good standing in his profession; that he was not authorized to practice surgery, or that he was grossly incompetent and that the defendant had knowledge of his incompetency, or in the exercise of due care could have obtained such knowledge; that the plaintiff did not know and had not equal means of knowing the competency and ability of the person employed or that the company was guilty of any neglect or any carelessness in selecting this particular surgeon to perform this service, therefore, if this second amended petition does aver sufficient facts to show a valid contract by the terms of which this company agreed and undertook to furnish medical and surgical aid to this plaintiff it wholly fails to show any breach of this contract on the part of the company or any such careless or negligent performance of its obligations arising under such contract as would make it liable to plaintiff for the damages which she may have sustained by reason of the incompetency, want of skill or malpractice on the part of the surgeon so employed.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Judgment reversed.

Spear, C.. J., Price and Johnson, JJ., concur.

Davis, J., not present at the argument and not voting.

Siíauck, J., concurs in the judgment and in the first and fourth propositions of the syllabus.  