132 S.W. 112 | Tex. App. | 1909
Lead Opinion
Appellant sued the appellee company to recover damages for the loss of an eye caused by the alleged negligence of Doctor S. Webb, the chief surgeon of appellee's hospital department at Walnut Springs. The defense was that the department was conducted without profit and as a charity. After the introduction of the evidence the jury were peremptorily charged in appellee's favor, and from the verdict and judgment in accord with such instruction this appeal has been prosecuted.
The action of the court is not defended on the theory that the evidence did not raise the issue of negligence on Doctor Webb's part, so that there remains for our determination the single vital question of whether the court was justified in giving the peremptory instruction to find for appellee on the ground that the evidence conclusively showed that appellee, in the undertaking of its hospital and treatment of sick and injured employes, was engaged in a charity. Appellee affirms that it was, and that therefore it is liable only for negligence in the employment of the surgeon. This appellant denies.
The evidence relevant to the question is to the effect that appellant, in April, 1907, had been employed by the appellee company, and was located at Walnut Springs; that as such employe he was engaged as a boiler-maker, receiving pay at the rate of thirty-eight cents an hour for the time employed, working ten hours a day; that the wages of appellee's employes were paid monthly, there being deducted out of each month's wages the sum of fifty cents for medical treatment at the hospital. Appellant thus states it: "Each and every month we were paid by the company our full month's pay, with the exception of fifty cents, which was deducted by the railroad company for medical treatment at the hospital. The money was not turned over to us to pay into the hospital fund, but the company in the first place deducted the fifty cents from our salary or from our pay check, and for this fifty cents per month the company was to give its employes medical treatment in its hospital. Other than this fifty cents per month no further charge was to be made for medical treatment at this hospital or by the company physician." It was otherwise shown that the appellee was a railroad company operating a line of railroad from Waco to Walnut Springs and other places; that appellant was injured and treated by Doctor Webb, who had been employed and was acting in accordance with a written contract whereby Doctor Webb agreed to act as chief surgeon of the appellee company, and as such to establish and maintain at Walnut Springs "an adequate and suitable hospital" at his own expense for the treatment of all employes of appellee who were "entitled to hospital privileges" as provided in the contract, and to furnish all instruments, devices, appliances, medicines and other necessaries, "for the proper treatment of all such employes, and to treat such employes who were entitled to hospital privileges under this contract, or the rules and regulations" of appellee governing in the matter. In consideration of which appellee agreed "to collect from all of its white employes, except its general officers, the sum of fifty cents per month as hospital fees," and to deliver the same to Doctor Webb, as compensation for his services, etc. The contract further provided that Doctor Webb should appoint local surgeons at all important towns on the line *569 of appellee's railway, and that such local surgeons might be called by appellee "to treat in cases of emergency any employe entitled to hospital privileges," and that the fees of such local surgeons for such services should be deducted by appellee from the hospital fund provided for. Appellee also agreed, as part compensation to all local surgeons appointed under the contract, to furnish them annual transportation over its line of road without cost to Doctor Webb. The contract provided that it should "continue in force for a term of five years" from its date, "subject, however, to be terminated by either party hereto by giving written notice of sixty days to the other party of his intention so to do." Mr. Hamilton, appellee's vice-president and general manager, testified that the average number of men employed by the company during the year 1906 was about seven hundred and twenty-three; for 1907, about nine hundred and eighty; that during the year 1907 there was received from the employes as hospital fees four thousand four hundred and forty-five dollars; that the money is received by the defendant company and in the course of business deposited in the First National Bank of Waco, and the payments of the pay-roll and the payments to the chief surgeon are made by checks on the First National Bank; that the deduction from the wages of the employes is sent to the chief surgeon at the same time the employes are paid. There was also evidence to the effect that Doctor Webb was regarded as a competent, careful physician, and that appellee was without negligence in his employment.
Appellee relies, in support of the court's action in giving the peremptory instruction, upon the case of the Galveston, H. S. A. Ry. Co. v. Hanway,
In the case of the Texas Pacific Coal Co. v. Connaughten, by this court, reported in the 20 Texas Civ. App. 642[
While we are aware that authorities may be found of a contrary tendency, among which may be noted the case of Union Pac. Ry. Co. v. Artist, by the Circuit Court of the United States for the District of Wyoming, 60 Fed. Rep., 365, we are nevertheless not entirely without authority in general support of the views we have expressed. Thus, in the case of Sawdey v. Spokane Falls N. Ry. Co. by the Supreme Court of Washington, reported in the
We conclude that the court erred in giving the peremptory instruction, and that the judgment should be reversed and the cause remanded for trial in accordance with the views herein expressed.
Reversed and remanded.
Dissenting Opinion
I agree that the judgment should be reversed and the cause remanded, but can not assent to the full scope of the opinion of the majority.
If plaintiff is entitled to recover, it must be by virtue of the contract either express or implied, under which the deductions of fifty cents per month from his wages were made, and this contract should be interpreted by the rules applicable to other contracts of like character. If it was the undertaking by and between plaintiff and defendant *572
that in consideration of such deductions from his earnings the defendant would treat him for any injuries he might receive while engaged in defendant's service, then the surgeon employed by defendant would be its servant, and defendant would be liable for damages resulting to plaintiff through the negligence of the surgeon in such treatment. Plaintiff in effect testified that such was the contract, and in view of his testimony, and other circumstances in evidence, I think it was error for the trial court to instruct a verdict in defendant's favor, as that issue, like any other controverted issue of fact, should have been submitted for determination by the jury. Likewise, I believe defendant would be liable at all events for any negligence of the surgeon in treating plaintiff, if it realized a profit from the total deductions for the hospital fund, as was held by this court in Texas Pac. Coal Co. v. Connaughten, 20 Texas Civ. App. 642[
If the contract between defendant and its employes was of the character last above indicated, the fact that there was not a further agreement for the return of any funds not expended, in the event of a termination of the contract, I think, would make no difference, as equity would supply the omission and vest title to the unused portion of the *573 fund in the employes. It might be difficult to determine the relative interests of the employes in the fund, but clearly it would not be the property of the defendant. And the fact that the defendant deposited the hospital fund to its own credit prior to its payment to the surgeon, and the further fact that under the arrangement between defendant and its employes the former had exclusive authority to select a surgeon, are not inconsistent with defendant's contention that the authority so to do was given it under the contract with its employes, and that its undertaking was to act in those matters solely as a trustee or agent for those contributing to the hospital fund.
Writ of error granted; reversed, and judgment of District Court affirmed.