85 P. 502 | Or. | 1906
delivered the opinion.
This action is founded on contract, and before the plaintifE can recover he must show that defendant agreed to furnish him with necessary medical and surgical attendance in case of in
This is all the testimony that was- given on the trial on the question now under consideration, and 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 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 therefrom, 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 the charitable purpose of maintaining a hospital, where they could obtain such medical attendance and hospital accommodations as the fund thus subscribed would afford. And the only liability assumed by the defendant in collecting the fund was to expend it for the purpose for which it was subscribed, and no other. The mere fact that it received or exacted the contribu
This action is not based upon a misapplication or misappropriation of the hospital fund by the defendant, or the emplojrment of an unskillful surgeon by it, but upon an alleged contract to furnish- plaintiff with necessary medical and surgical attendance — an averment entirely- unsupported by the testimony.
The judgment is-therefore reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Beversed.