169 P. 339 | Or. | 1917
In the case at bar it appears that Dr. Starbuck had an office and a young lady attendant whose custom it
There is no rule for the construction of this species of contracts different from the rules that apply generally to all contracts. So far as the defendant is concerned, it is in. writing and by its terms the defendant promised absolutely to furnish plaintiff the services of its physician in case of sickness or injury. It was not a contract to furnish the services of its physician in the event he could be reached or was available, but to furnish his medical services when needed. It was not a charity service, such as figures in some of the cases cited by counsel for defendant; neither was it a contract to administer a trust fund for the benefit of persons subscribing thereto, which is described in other cases cited. It was a plain open agreement that in consideration of 75 cents per month paid by the employee, the employer would furnish him the services of its physician when needed. It is not probable that the sum paid by employee would exceed the cost of the service to be rendered, but such a condition is possible and in that case or in any case, the amounts paid by the employees went directly into the treasury of the company and was as much its money as the cash it received for lumber. None of the Oregon cases cited are hostile to this doctrine.
In Miller v. Beaver Hill Coal Co., 48 Or. 136 (85 Pac. 502), it appeared that the defendant company retained from the wages of its employees the sum of $1.50 a month “for the hospital” and had a hospital at its mine. Mr. Chief Justice Bean, after stating the testimony, said:
“We are of the opinion it falls short of proving a contract by the defendant to provide the plaintiff with necessary medical and surgical attendance in case of*17 injury. It merely shows that a certain sum each month was contributed by the plaintiff and his fellow employees, or exacted by the company, for the support and maintenance of a hospital for the use of the employees. There is no evidence that any statement or promise was made by the defendant to the plaintiff, or any of its employees, as to the object and purpose of the contribution or the benefit they would receive there-, from, other than it was for hospital purposes. The transaction, therefore, under the testimony, constituted in law nothing more than a subscription by the plaintiff and the other employees for charitable purpose of maintaining a hospital, where they could obtain such medical attendance and hospital accommodations as the fund thus subscribed would afford.” .
In the case at bar the contract supplies the very element necessary to justify a recovery, which was lacking in the case cited, namely: a promise on the part of the company collecting the money to furnish the services.
In Jackson v. Pacific Coast Condensed Milk Co., 61 Or. 158 (120 Pac. 1, 37 L. R. A. (N. S.) 757), the contract of employment was as follows:
“George Jackson, No. 54, enters the employ of the Pacific Coast Condensed Milk Co. as gen’l help, to be rated at 15^ per hour from June 9,1908; 50^ per month to be deducted for Hospital Fund. Payment for each month’s labor to be made on the 12th day of the following month. I agree to the above.
“(Signed) George Jackson.
“H. H. Steward, Supt.”
It was held this created a liability on the part of the defendant to the extent of the fund on hand. This conclusion would seem to follow naturally from the very terms of the agreement.
It is useless to discuss further the decisions of courts of other jurisdictions. They vary as the terms of the
The defendant in effect undertook that it would furnish the services of its physician when needed. It did not and could not furnish such services by reason of the fact that the physician was away and not immediately available. The plaintiff used what the jury found was reasonable diligence to get him and failing to do this, employed and paid another physician to do his work. To say that having bought and paid.the company for this service in advance, he should be required to pay for it a second time and stand the loss, because the company was not in a position to furnish it, would not be just and would be to apply to this contract a rule not applied to other contracts. A contracts with B to deliver to him when he shall require it, 100 bushels of wheat and B pays for the wheat. When B requires the wheat it is found that A’s granary has been destroyed and he has no wheat on hand with which to fulfill his contract. Whereupon B’s demand being urgent he buys it elsewhere. Shall he not have compensation from A for this second outlay? Surely.
Taken as a whole we are of the opinion the case was fairly, tried and the verdict and judgment such as should have been rendered. The judgment is affirmed.
Affirmed.