Barley's Adm'x v. Clover Splint Coal Co.

• Decision Date: 25 April 1941
• Citation: 150 S.W.2d 670,286 Ky. 218
• Parties: BARLEY'S ADM'X v. CLOVER SPLINT COAL CO. et al.
• Court: Kentucky Court of Appeals

150 S.W.2d 670

286 Ky. 218

BARLEY'S ADM'X v. CLOVER SPLINT COAL CO. et al.

Court of Appeals of Kentucky

April 25, 1941

Appeal from Circuit Court, Harlan County; J. S. Forester, Judge.

Action by Celia Barley, as administratrix of the estate of Elmer Barley, deceased, against the Clover Splint Coal Company and another to recover damages for the death of deceased. From a judgment dismissing the petition, plaintiff appeals.

Affirmed.

Rose &amp Rose, of Harlan, for appellant.

J. B Carter, of Harlan, for appellee.

REES Chief Justice.

Elmer Barley died January 15, 1939, following an operation for appendicitis. His widow, Celia Barley, qualified as administratrix of his estate, and brought an action against the Clover Splint Coal Company and Armstrong Matthews, its superintendent, to recover damages for his death. A demurrer to the petition was sustained, and the plaintiff declined to plead further. This is an appeal from the judgment dismissing her petition.

It was alleged in the petition that Elmer Barley was an employee of the Clover Splint Coal Company at the time he became ill, and that he had been assessed $1 a week by his employer to pay the doctor employed by the company for medical treatment. The petition also alleged that the "decedent suddenly became ill with a fatal disease called appendicitis and called on defendant, Company and its Doctor, Riggens, and on defendant Armstrong Matthews as superintendent to have said Company Doctor to treat plaintiff's decedent; that said Company and defendant, Matthews, refused to allow and suffer said doctor to treat said decedent and said decedent got steadily worse in the progress of said disease and finally died from lack of medical treatment and lack of an operation in time for appendicitis, which was the proximate cause of said death; that decedent was a poor person and although after he found out that defendant would not allow, suffer or permit said Company doctor to attend and treat decedent, said decedent was forced to and did exercise due care and diligence to secure other medical and surgical treatment for decedent, and in doing so finally got another doctor after the lapse of several days to diagnose and treat decedent, and they finally sent decedent to the Harlan Hospital where he was operated on for appendicitis, but after it was too late and decedent died from said disease after about ten days from said operation."

While the petition intimates that a contract had been entered into between the decedent and his employer, whereby the employer was to furnish medical services in consideration of $1 retained by it monthly out of the employee's wages, yet the action was in tort. An action for a breach of the contract was maintainable, the measure of damages being the necessary and reasonable expenses incurred in obtaining other medical services. In the absence of a contract no legal duty rested upon the appellees to furnish medical services to the decedent. Section 6 of the Kentucky...