BROWN, Associate Justice.
The Court of Civil Appeals for the Fifth District has certified to this court the following statement and questions:
“The appellant, the Missouri, Kansas & Texas Railway Company of Texas, enters into agreements with its employes, in consideration of deducting a stipulated sum from their wages each month, that in case any one of them should become sick or injured while in its service, it would furnish them surgical and medical attention. Appellant entered into a contract with Alonzo Dickson, an employe, whereby it was agreed, in consideration of deducting 35 cents from his wages each month, that if he should become injured or sick it would take charge of him and treat him for such injury or sickness. On August 1, 1899, and for many years prior thereto, the appellant was operating and controlling a hospital department for the purpose of treating its sick and injured employes. The Missouri, Kansas & Texas Railway Company of Texas, and
the Missouri, Kansas & Texas Railway Company, constitute what is known as the Missouri, Kansas & Texas Railway System. Said companies operate, in connection with and as a part of the claim and legal departments, their hospital department, under one general management, for the mutual benefit and interest of the companies and their respective employes.
“The Kansas company owns a hospital at Sedalia, Mo., that is used by the two companies, where some of the employes of appellant are sent for treatment when sick or injured.
“During the latter part of July, 1899, Alonzo Dickson, who was then in the employment of appellant as a section hand and had been in such employment for four years in Hunt County, received a slight injury in such service and was sent to the Sedalia hospital, arriving there on August 1, 1899. At the time he was placed in the hospital he was placed in a ward with some colored patients who were broken out with smallpox, smallpox having existed in the hospital from the 10th-day of July previous. He complained to the surgeon in charge and told him that those negroes had smallpox and that he desired to leave the hospital. He was told by the surgeon that it was only chickenpox, but to come around the nexj; morning and he would give him a pass back to Greenville. On the next morning, August 2, 1899, he was discharged from the hospital, sent back to Hunt County, and placed at work for appellant under James Ewing, section foreman.
“George McNeil was the house surgeon of said hospital. It was his duty to examine, admit, treat, and discharge patients sent to the hospital, and to keep a register showing the names and address and the dates of admission and discharge of all patients sent to the hospital for treatment. This surgeon was inexperienced in the treatment óf smallpox, never having treated a ease prior to this time, there never having been a case of smallpox in the hospital since he had been in charge, he being put in charge in 1890, the same year he graduated from college. It was not determined that there was smallpox in the hospital until August 2, 1899, the day that Dickson was discharged from and after he left the hospital.
“On that day the city of Sedalia quarantined the hospital on account of the prevalence of smallpox in the hospital, and it remained under quarantine until September 11, 1899. Prior to the 2d day of August, appellant did not know that smallpox existed in the hospital, but learned it on that day and that Dickson had been exposed thereto and was liable to break out with the disease in about fifteen days. Ho precautions were taken to protect him, or the public against him, until the 19th day of August, when he 'broke out with the disease. On August
3,
1899, the division superintendent of appellant, A. D. Bethard, at Denison, Texas, sent to A. W. Baxley, at Greenville, Texas, the roadmaster of the Mineóla division of appellant’s lines, the following telegram: ‘During quarantine at Sedalia hospital, local surgeons will look after
sick or injured employes except those who desire to go .to hospital, who-may be sent to Dallas, Fort Worth, or Houston infirmary.’
“When Dickson broke out with smallpox and this fact was made-known to the company’s local surgeon, Dr. Garnett, he wired to Dr. Yancey, the chief surgeon, to know what to do with him and the chief surgeon wired him: 'Isolate and quarantine him, secure a nurse at reasonable wages, and give him such attention there as he will need. Write me particulars and daily expenses. Attend, to vaccination and watch anyone who may have been exposed by him.’
“When B. M. Chapman, who was then the mayor of -■ Greenville, learned that Dickson had smallpox, and before he learned that he was an employe of appellant and had been exposed to the disease at its hospital, he purchased a tent and arranged with the owner of some lands preparatory to taking charge of Dickson. This was Sunday afternoon, August 20, 1899. But before taking charge of Dickson, Dr. Garnett showed Chapman his instructions from Yancey, at which time Dr. Gar-nett, acting under the said instructions of Dr. Yancey, took charge of Dickson and undertook to isolate and quarantine him. He placed him in the tent and on the land that had already been secured and designated by Chapman as a quarantine camp, and Chapman took no further steps until after Dickson had escaped, which was on Tuesday morning, August 22. On that afternoon, the mayor, acting on the understanding that the railway company would defray the expenses, hired one additional guard for the pest camp and established a detention camp near the pest camp and confined in it all who had been exposed to Dickson. Dr. Garnett having taken charge of Dickson, undertook to isolate and quarantine him on behalf of the railroad company, neglected to employ a sufficient number of attendants or guards to restrain him, but negligently employed an incompetent Mexican and placed him in charge of Dickson to guard and nurse him for the first two days. At the time the Mexican was put in charge of Dickson, he (Dickson) was delirious with fever, and it was known that persons thus suffering would likely escape. While Dickson was in a delirious condition, the Mexican went to sleep and negligently permitted him to escape from the camp and to wander upon the premises of appellees and communicate to them and their child the disease, inflicting the injuries complained of by appellees. Appellants exercised due care in the selection of their surgeons and physicians.
“Questions.—Under the foregoing facts, did the negligence of appellant’s local surgeon in employing an incompetent nurse or attendant for Dickson, and the negligence of said attendant in permitting said Dickson to escape while delirious, render appellant liable for the damages sustained by appellee by reason of the smallpox being communicated to him and his family by said Dickson?
“2. Is the appellant liable for the damages sustained by appellee by reason of having exposed Dickson to the smallpox at the hospital at Sedalia and afterwards assuming care of him, in failing to isolate and
have him properly guarded to prevent his escape and communicating the disease to appellee and family?”
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BROWN, Associate Justice.
The Court of Civil Appeals for the Fifth District has certified to this court the following statement and questions:
“The appellant, the Missouri, Kansas & Texas Railway Company of Texas, enters into agreements with its employes, in consideration of deducting a stipulated sum from their wages each month, that in case any one of them should become sick or injured while in its service, it would furnish them surgical and medical attention. Appellant entered into a contract with Alonzo Dickson, an employe, whereby it was agreed, in consideration of deducting 35 cents from his wages each month, that if he should become injured or sick it would take charge of him and treat him for such injury or sickness. On August 1, 1899, and for many years prior thereto, the appellant was operating and controlling a hospital department for the purpose of treating its sick and injured employes. The Missouri, Kansas & Texas Railway Company of Texas, and
the Missouri, Kansas & Texas Railway Company, constitute what is known as the Missouri, Kansas & Texas Railway System. Said companies operate, in connection with and as a part of the claim and legal departments, their hospital department, under one general management, for the mutual benefit and interest of the companies and their respective employes.
“The Kansas company owns a hospital at Sedalia, Mo., that is used by the two companies, where some of the employes of appellant are sent for treatment when sick or injured.
“During the latter part of July, 1899, Alonzo Dickson, who was then in the employment of appellant as a section hand and had been in such employment for four years in Hunt County, received a slight injury in such service and was sent to the Sedalia hospital, arriving there on August 1, 1899. At the time he was placed in the hospital he was placed in a ward with some colored patients who were broken out with smallpox, smallpox having existed in the hospital from the 10th-day of July previous. He complained to the surgeon in charge and told him that those negroes had smallpox and that he desired to leave the hospital. He was told by the surgeon that it was only chickenpox, but to come around the nexj; morning and he would give him a pass back to Greenville. On the next morning, August 2, 1899, he was discharged from the hospital, sent back to Hunt County, and placed at work for appellant under James Ewing, section foreman.
“George McNeil was the house surgeon of said hospital. It was his duty to examine, admit, treat, and discharge patients sent to the hospital, and to keep a register showing the names and address and the dates of admission and discharge of all patients sent to the hospital for treatment. This surgeon was inexperienced in the treatment óf smallpox, never having treated a ease prior to this time, there never having been a case of smallpox in the hospital since he had been in charge, he being put in charge in 1890, the same year he graduated from college. It was not determined that there was smallpox in the hospital until August 2, 1899, the day that Dickson was discharged from and after he left the hospital.
“On that day the city of Sedalia quarantined the hospital on account of the prevalence of smallpox in the hospital, and it remained under quarantine until September 11, 1899. Prior to the 2d day of August, appellant did not know that smallpox existed in the hospital, but learned it on that day and that Dickson had been exposed thereto and was liable to break out with the disease in about fifteen days. Ho precautions were taken to protect him, or the public against him, until the 19th day of August, when he 'broke out with the disease. On August
3,
1899, the division superintendent of appellant, A. D. Bethard, at Denison, Texas, sent to A. W. Baxley, at Greenville, Texas, the roadmaster of the Mineóla division of appellant’s lines, the following telegram: ‘During quarantine at Sedalia hospital, local surgeons will look after
sick or injured employes except those who desire to go .to hospital, who-may be sent to Dallas, Fort Worth, or Houston infirmary.’
“When Dickson broke out with smallpox and this fact was made-known to the company’s local surgeon, Dr. Garnett, he wired to Dr. Yancey, the chief surgeon, to know what to do with him and the chief surgeon wired him: 'Isolate and quarantine him, secure a nurse at reasonable wages, and give him such attention there as he will need. Write me particulars and daily expenses. Attend, to vaccination and watch anyone who may have been exposed by him.’
“When B. M. Chapman, who was then the mayor of -■ Greenville, learned that Dickson had smallpox, and before he learned that he was an employe of appellant and had been exposed to the disease at its hospital, he purchased a tent and arranged with the owner of some lands preparatory to taking charge of Dickson. This was Sunday afternoon, August 20, 1899. But before taking charge of Dickson, Dr. Garnett showed Chapman his instructions from Yancey, at which time Dr. Gar-nett, acting under the said instructions of Dr. Yancey, took charge of Dickson and undertook to isolate and quarantine him. He placed him in the tent and on the land that had already been secured and designated by Chapman as a quarantine camp, and Chapman took no further steps until after Dickson had escaped, which was on Tuesday morning, August 22. On that afternoon, the mayor, acting on the understanding that the railway company would defray the expenses, hired one additional guard for the pest camp and established a detention camp near the pest camp and confined in it all who had been exposed to Dickson. Dr. Garnett having taken charge of Dickson, undertook to isolate and quarantine him on behalf of the railroad company, neglected to employ a sufficient number of attendants or guards to restrain him, but negligently employed an incompetent Mexican and placed him in charge of Dickson to guard and nurse him for the first two days. At the time the Mexican was put in charge of Dickson, he (Dickson) was delirious with fever, and it was known that persons thus suffering would likely escape. While Dickson was in a delirious condition, the Mexican went to sleep and negligently permitted him to escape from the camp and to wander upon the premises of appellees and communicate to them and their child the disease, inflicting the injuries complained of by appellees. Appellants exercised due care in the selection of their surgeons and physicians.
“Questions.—Under the foregoing facts, did the negligence of appellant’s local surgeon in employing an incompetent nurse or attendant for Dickson, and the negligence of said attendant in permitting said Dickson to escape while delirious, render appellant liable for the damages sustained by appellee by reason of the smallpox being communicated to him and his family by said Dickson?
“2. Is the appellant liable for the damages sustained by appellee by reason of having exposed Dickson to the smallpox at the hospital at Sedalia and afterwards assuming care of him, in failing to isolate and
have him properly guarded to prevent his escape and communicating the disease to appellee and family?”
The contract between appellant and Dickson and the acts of the railroad company in sending him to the hospital at Sedalia, where he became infected with smallpox, were pertinent to the issues in this case only to the extent they tend to show that Dr. Garnett, in taking charge of the ■sick man and undertaking to care for him, acted as appellant’s agent and "within the scope of his authority. The Court of Civil Appeals having found that Dr. Garnett was authorized by the appellant to take charge of Dickson, it will be unnecessary for us to notice the relative rights and liabilities of the railroad company and Dickson.
Counsel for appellant claim that the quarantine of Dickson was a public duty which the city of Greenville might have taken-in hand without liability for the acts of its officers, from which the conclusion is drawn that for performing the same acts the railroad company is entitled to the same immunity. White v. San Antonio, 60 Southwestern Reporter, 426, is cited to support the proposition. It is sufficient to say that the appellant occupied a very different position to that of the city of San Antonio; for the latter was engaged in the enforcement of a law of the State discharging a duty enjoined upon it by the statute, while the appellant voluntarily undertook to do what the city might have done, being neither authorized nor required by law to do so. It did not represent the State of Texas and was not entitled to the immunity from liability which is accorded to the State.
Counsel urge the proposition that the railroad company owed no duty to the appellee; therefore, there was no liability for ■ Dickson’s escape. House v. Waterworks, 88 Texas, 233, is relied upon to sustain that position, but the. cases are so dissimilar that the principles announced in that case are not applicable in this. In House v.' Waterworks, the two ■classes of cases are distinguished- upon authorities cited and discussed, nonliability for a failure to perform a duty due to the public as such :is there commented upon and contrasted with the class of duties which ;are intended to benefit the individuals composing the public. This case ¡belongs to the latter class, because whatever affects the health of the (community necessarily affects the individual members thereof; and when the duty to prevent the spread of a contagious disease rests upon a private corporation or person, an obligation arises in favor of each member ■of the community, and a right of action exists in favor of him who ¡suffers from its breach.
But counsel for the railroad company earnestly insist that it is not liable for the act of Dickson in going away from the camp, although he was at the time delirious to the extent of being incapable of self-control. In Tunbridge W. L. Board v. Bisshopp, 2 Common Pleas Division, page 192, Denman, J., stated and answered the question thus: "Can a man be ¡said to ‘expose’ or to he in charge of’ one who is of full age and a free agent? A man weakened by disease may fairly be said to be ‘exposed’ hy the person who is attending upon him. The statute can not be limited
to legal control or it will become a dead letter.” That ease proceeded before the court upon the ground that the defendant had exposed one infected with a contagious disease by going with him through the streets and in public places, but the defendant was acquitted because he had used proper care in doing so. The case answers the objection made that the escape of Dickson and his going upon the premises of the appellee could not be charged to the railroad company.
Whenever the duty of restraining another arises and the power of control over him exists, liability will follow upon a failure to perform the duty. In Metropolitan Asylum District v. Hill, 6 Appeal Cases, 204, Lord Blackburn said: “When the disease is infectious, there is a legal obligation on the sick person and on those who have the custody of him not to do anything that can be avoided which shall tend to spread the infection; and if either do so, as by bringing the infected person into a public thoroughfare, it is an indictable offense, though it will be a defense to an indictment if it can be shown that there was a sufficient cause to excuse what is prima facie wrong.” The same principle obtains in reference to animals of known vicious character which the owner is required to restrain to prevent them from inflicting injury upon others; and the owners of animals known to be infected with contagious diseases must control them in such manner as to prevent them from communicating the disease to the animals of other persons. Clarendon L. Co. v. McClelland Bros., 89 Texas, 490. If the railroad company had undertaken to keep a horse known to be affected with a contagious disease at the same place and by the same means, and the horse had been' permitted, through the negligence of the attendant, to escape and had communicated the disease to a horse the property of the appellee, there would be no doubt of the liability of the railroad company for the damages. If there be a sound reason for denying to Wood as great security for his wife and children against .the diseased man as would have been accorded to him in favor of his beasts against a diseased horse, it has not been suggested by counsel for the appellant, and we are unable to discover any tenable basis for the distinction.
The quantum of diligence which was required of the appellant depended upon the character of the disease and the danger of communicating it to others. “If the business be hazardous to the lives of others, the care to be used must be of a nature more exacting than required where no such hazard exists; the greater the hazard, the more complete must .be the exercise of care.” Railway v. Hewitt, 67 Texas, 478. Smallpox is commonly known to be a highly contagious disease and very dangerous to human life, and isolation of the infected person is generally recognized as necessary to afford protection to the community in which he may be found. The Court of Civil Appeals found as a fact that it is a characteristic of smallpox, known to appellant’s agent, that the patient is liable to become delirious to the degree of irresponsibility and to wander from the place of confinement, being thereby liable to come into contact with persons in the neighborhood. The object of placing Dickson in the
tent and supplying a nurse and guard for him was not alone to care for and to provide for him, but also to protect the public against infection by contact, and when the railroad company undertook to treat Dickson for the disease and to care for him at the place designated by the mayor of Greenville, it assumed the duty of using ordinary care to prevent Dickson from exposing himself in delirium, or from being exposed otherwise so as to communicate the disease to other persons, and having failed, through the negligence of its employes, to use such care, and by reason of its negligence Dickson having escaped and communicated the disease to the appellee’s family, the railroad company was liable for the damage caused thereby. King v. Vantandillo, 4 Maule & S., 75; King v. Burnett, Id., 273; Haag v. Board of Commissioners, 60 Ind., 511; 28 Am. Rep., 654; Smith v. Baker, 20 Fed. Rep., 709; Metrop. Asylum Dist. v. Hill, 6 Appeal Cases, 204.
To both questions, we answer that under the facts stated the railroad company was liable to the appellee Wood for the damages caused to him. by reason of the smallpox being communicated to him and his family by Dickson through the negligence of the agent of the railroad company.