72 W. Va. 728 | W. Va. | 1913
Plaintiff recovered a verdict for $12,500 damages against defendant in an action of trespass on the case for a personal injury, alleged to have been caused by the malpractice of Dr. A. B. Nelson, who was employed by defendant company to treat its employees and their families. The court sustained defendant’s motion to set aside the verdict, and granted it a new trial, and plaintiff was awarded this writ of error to that order of the court. Her counsel urge that it was error to set aside the verdict.
Defendant is engaged in mining coal, and employs a.large n,umber of miners.- It employed Dr. Nelson to treat, profes-
Counsel for defendant practically admit that the evidence is sufficient to warrant the jury in concluding that plaintiff’s injury resulted .from the neglect or malpractice of Dr. Nelson, 'due to his drunken condition, but they insist that the evidence fails to prove negligence on the part of defendant, that the jury were not justified in finding against it and that the court properly set aside the verdict.
To entitle plaintiff to recover it is necessary to prove two things: (1) that the malpractice of Dr. Nelson was the proximate cause of her injury; and (2) that defendant was negligent in selecting or in retaining him. Defendant was under no legal obligation to provide a physician and surgeon for its employees; but, having assumed to do so> it was bound to exercise reasonable care to select a competent and skillful one. Neil v. Flynn Lumber Co., 71 W. Va. 308, 77 S. E. 324; Big Stone Gap Iron Co. v. Kenton, 102 Va. 23; Secord v. St. Paul &c. Ry. Co., 18 Fed. 221; Laubheim v. DeK. N. S. Co., 107 N. Y. 228; and Dye v. Corbin, 59 W. Va. 266 It was not bound to select a physician possessing the highest degree of competency and skill, but only the average skill of physicians in the locality in which he was to practice. Lawson v. Conaway, 37 W. Va. 159, and Neil v. Flynn Lumber Co., supra.
“Where the hospital is maintained by a master for the sole purpose of relieving injured servants, without any intention of profit to himself, he is not liable to his servants for the malpractice of the physician employed if ordinary care was exercised in selecting him, although the hospital is supported by the contributions of the servants.” 26 Cyc. 1082; 5 Labatt (2d ed.), section 2005; Richardson v. Carbon Hill Coal Co., 10 Wash. 648, 39 Pac. 95 ; and Quinn v. Kansas City &c. Co., 94 Tenn. 713, 28 L. R. A. 552. To the same effect as above is Neil v. Flynn Lumber Co., supra.
No more rigid rule is applicable in case of the employment of a physician to treat its servants than is applicable in the case of employment of fellow servants, and it is well settled in such cases that the master’s duty is not wholly discharged by the exercise of proper care in their selection in the first instance. He is bound to keep1 himself advised as to their continued fitness, so "far as it can be accomplished by proper supervision and superintendence. 3 Labatt (2d ed.), section 1098; Cooney v. Commonweallh &c. R. R. Co.. 196 Mass. 11, 81 N. E. 905; B. & O. R. R. Co. v. Henthorne. 73 Fed. 634, 17 C. C. A. 623; The Ohio & Miss. Ry. Co. v. Collarn, 73 Ind. 261, 38 Am. Rep. 134; N. & W. R. R. Co. v. Nuckols, 91 Va. 193. But the same degree of care to keep himself informed of the continued fitness of his servants is not required of the master as in case of their employment, or as is required in keeping machinery and appliances, which are known to deteriorate with use, in proper repair. On the contrary, “When suitable and competent persons have been employed, good character and proper qualifications may be presumed to continue, and the. master may rely on that presumption until notice of a change.” 3 Labatt (2d ed.), section 1098. Southern P. Co. v. Hetzer, 1 L. R. A. (N. S.) 288, 135 Fed. 272; Blake v. Maine &c. R. R. Co., 70 Me. 60, 35 Amer. Rep. 297; The Lake Shore &c. Ry. Co. v. Stupak, 123
■ A corporation acts- by, and obtains knowledge -through; its officers and -agents, and knowledge acquired-by them is generally attributed to it. But there is no evidence that any oi defendant’s officers- had actual knowledge of- Dr. Nelson’s drunken habits. On' the contrary, it is proven by Mr. L. E. Yoder, defendant’s-chief engineer and superintendent, who employed the doctor, and by Mr. John Porter, his successor in'office, who was in-charge of-the mine at the time plaintiff’s injury-occurred, that 'they had not heard of Dr. Nelson’s drinking and knew nothing of it, prior to 15th October, 1910, the time of plaintiff’s--sickness, notwithstanding- they say they made inquiry frequently, when at Lanark, to ñnd out if there were any complaints against him. Moreover, Mr. Porter'-says plaintiff’s husband was the first one who thereafter informed him of his drinking. This testimony is not contradicted and -it proves that defendant did not have actual knowledge of the doctor’s incompetency. But it seems to be well settled that the general reputation of an employee for drunkenness or habitual carelessness, in the community in which he is employed, is admissible as tending to prove that the master had actual knowledge thereof and that he should have been thereby put upon inquiry to ascertain if that reputation was well founded. B. & O. R. R. Co. v. Henthorne, 73 Fed. 634; Wabash R. R. Co. v. Kelley, 153 Ind. 119, 52 N. E. 152; Driscoll v. City of Fall River, 163 Mass. 105; Gilman v. Eastern R. R. Co., 13 Allen (Mass.) 433; Davis v. Railway Co., 20 Mich. 105; Western Stone Co. v. Whalen, 151 Ill. 472; Hills v. Chicago &c. Ry., 55 Mich. 437; 1 Wigmore on Evidence, section 249. In Wabash R. R. Co. v. Kelley, supra, it was held that: “'The reasonable diligence which a railroad company must use in carrying out its agreement to care for its injured ancl sick employes includes the duty to discharge a surgeon in chief who had become incompetent from the use of intoxicants and narcotics, which was notorious in the community, so that the supervising officials of the company must have, or at least ought to have known it.” Judge Cooley, in Davis v. Detroit &c. R. R. Co., 20 Mich, at page 124, says: “The ignorance itself-is negligence in a case in which any proper inquiry
Does the testimony prove that the doctor’s reputation for drunkenness, in the community in which he was practicing, was so general as to establish negligence in defendant not to know of it? We think not. Certainly not, when its officers and managers in charge of its works at Lanark, where the doctor lived and practiced, testify that they never heard of his drinking. Nearly all the witnesses examined on this question were, or had been, employes of defendant and lived at, or near its mine. Five or six of plaintiffs witnesses testified to having seen the doctor in a .state of intoxication, sometimes two or more of them being witnesses to the same occasion. This testimony was admissible for the purpose of proving the doctor’s incompetency, as there is also evidence tending to prove that he failed to give plaintiff proper treatment at the time he was called to see her because of his then drunken condition. But it was not admissible for the purpose of proving his general reputation. 1 Wigmore on Evidence, section 250.
On the other hand quite as many witnesses, including Ben Guy, plaintiff’s husband, testified for defendant that they never heard his reputation for drunkenness or sobriety discussed prior to October 15, 1910. In Driscoll v. Fall River, 163 Mass. 105, the court, in discussing the effect of evidence as to the general reputation of one of its employes as affecting the master with notice of his careless habits, says: “The reputation of a foreman amongst a few workmen employed under him is not - a general
E. E. Peters, D. W. Anderson, Ben Carey, Henry Thomas, and Spencer Thompson testified that they were acquainted ■with the doctor’s reputation in the community, and that he had the reputation of being a drunkard. But on cross-examination none of' them could give the names of more than one or two persons whom they had heard speak of the matter; and generally, when a name was mentioned it proved to be some one of .the other witnesses. Moreover, most of the witnesses were unable to say whether they had heard it mentioned before, or after, the time of plaintiff’s injury. Such testimony is too uncertain and indefinite to support a verdict depending on proof of general reputation as matter of notice. It shows that the reputation is limited and not general. It does not arise to the dignity of proof of a general reputation. Nor does it prove that the limited reputation for drunkenness was not acquired after October 15, 1910, the time of plaintiff’s injury. Shortly after that time, the doctor was taken to a sanitarium, and it is admitted that he then acquired a very general reputation for drunkenness. But defendant was not affected by a reputation thereafter acquired.
But there is another reason why we think the court did not err in setting aside the verdict, and that is this, the evidence by which plaintiff seeks to show defendant’s negligence applies with equal force to prove her own negligence, or that of her husband, which is the same thing, for he acted as her agent in calling in the physician. Ben Guy’s opportunities to know Dr. Nelson’s general reputation for drunkenness, if he had such reputation, was equally as good as, if not better than, that of defendant’s managers. He lived in the same community with the doctor, they did not; he saw him frequently and had, on previous occasions, called him in to treat members of his family. In Davis v. Detroit &c. R. R. Co., supra, which was an action
We do not mean to say that the duty rests upon the servant, as it does upon the master, to acquaint himself in regard to the competency 'of a "fellow-servant with whom he is working, but what we do say is, that,"having knowledge of such incompeteney, it is the servant’s duty to bring it to- the attention of his master, else he will bo held to have assumed the risk. And in the present cáse the only evidence of knowledge is the testimony of certain witnesses as to reputation, and it is just as reasonable to suppose that Bep Guy had notice of it as that defendant had. Like a-two-edged sword, the evidence cuts both ways. See also 4 Thompson on Negligence, sections 4895-4896.
For the reasons herein giveji we affirm the judgment of the lower court and remand the case for further proceedings.
Affirmed.