Congdon v. Louisiana Sawmill Co., Limited

• Decision Date: 01 April 1918
• Docket Number: 21352
• Court: Louisiana Supreme Court
• Parties: CONGDON v. LOUISIANA SAWMILL CO., Limited

78 So. 470

143 La. 209

CONGDON v. LOUISIANA SAWMILL CO., Limited

No. 21352

Supreme Court of Louisiana

April 1, 1918

SYLLABUS

(Syllabus by the Court.)

Where an employer employs a physician or surgeon of ordinary skill and ability to attend to his employes, and pays the physician from a fund collected from the employes, and from which fund the employer derives no profit, he is not responsible in damages to an employe for mistakes of or malpractice by such physician; particularly, where it is not charged and proved that the employer was negligent in the selection of the physician.

A petition for damages in such case should contain allegations of neglect on the part of the employer in employing a competent physician, and that he derived some profit from the fund contributed by the employes to pay the physician. In the absence of such allegations, the petition discloses no cause of action.

Mims &amp Peterman and R. C. Culpepper, all of Alexandria, for appellant.

Blackman, Overton & Dawkins, of Alexandria, for appellee.

O'NIELL and LECHE, JJ., concur in the decree.

OPINION

SOMMERVILLE, J.

Plaintiff sues to recover $ 5,000 damages against defendant, and, for cause of action, shows that, while he was in the employ of the defendant, a lumber company, he sought the medical aid of Dr. Broadway, 'the sawmill physician of said company,' to remove a wart that was on his back, and which had been, for some time, a source of annoyance to him; that, in endeavoring to remove the wart, said physician applied an acid carelessly, recklessly, and negligently; that he poured the acid on plaintiff's naked back, and it circled around his body, consuming skin and flesh in its course; that said physician, through negligence or lack of proper knowledge and skill, utterly failed to relieve petitioner.

Plaintiff further alleged:

'That, in this case, as was and had been customary with all the employes of said company, the said company retained out of petitioner's wages a certain sum of money for the specific purpose of insuring medical aid and treatment for petitioner whenever it became necessary and expedient for him to have same; that, while the employes of the company contributed out of their wages and salaries earned by them, as employes of the company, or rather the same was withheld by the company for the purpose of establishing a fund to be used solely and exclusively by the company with which to employ a physician to look after the health of its employes and treat such of them as may apply to such physician for treatment, your petitioner had nothing whatever to do with the employment of such physician or of fixing his salary, but said fund was and is under the sole and exclusive management and control of defendant company, and the physician so employed by it is alone responsible to said company. He shows further that the said Dr. C. B. Broadway was regularly employed by and had his salary paid him by said defendant company, and had his office adjacent to the company's mill, and was at the time of said alleged injuries actually engaged in the discharge of his duties at his said office and acting within the scope of his employment as an employe of said company. Petitioner alleges that on the occasion above mentioned he called upon said physician at his office for the sole purpose of obtaining treatment from said sawmill physician, as he had a right to expect and to have from him as an employe of defendant company in consideration of petitioner's payment to the company or the company's retention of the medical dues from his wages as aforesaid.'

To this petition the defendant filed an exception of no cause of action, which was overruled. The defendant answered, reserving the benefit of the exception.

The case went to trial on the merits, and it was decided in favor of defendant. Plaintiff has appealed.

The exception of no cause of action should have been sustained.

Plaintiff does not allege that the defendant derived any profit from the employment of the physician employed by it, or out of the fund created for the purpose of paying the physician's salary. He does not allege that the defendant failed to exercise ordinary care in its selection of a physician to treat injured and sick employes. He does not even allege that Dr. Broadway, the physician selected by defendant, was an incompetent physician. These were necessary allegations to show cause of action by him against defendant.

Plaintiff seeks to hold defendant responsible solely and exclusively upon the theory that, where an employer raises, out of the wages of the employes, a fund, for the purpose of rendering medical aid and treatment to his employes and their families, and, acting as agent or trustee of this fund, employs a physician, the employer is responsible for any negligent act of surgical or medical attention by the physician to one of the employes, resulting in injury to the employe, even though the employer derives no profit out of his relation as agent of such fund, and even though the physician selected and retained by the employer is a competent physician.

The law applicable is well settled, by an almost unbroken line of decisions of this and other courts, to be the opposite of plaintiff's contention.

Under the decisions, the employer can be made to respond in damages in such a case only in the event that he fails to exercise ordinary care in the selection the physician, or in the event that he derives a pecuniary profit out of the fund employed for hospital or medical purposes.

The only case decided by this court relating to the question here presented is Nations v. Luddington, etc., Co., 133 La. 657, 63 So. 257, 48 L. R. A. (N. S.) 531, Ann. Cas. 1916B, 471, wherein an employe was killed by the administration of chloroform by a layman with the knowledge and permission of the defendant, and where an immediate operation was unnecessary, and an assistant physician could readily have been procured to administer the chloroform; and there the court said:

'A condition of the employment contract at the defendant's mill was that the company should withhold weekly out of the wages of the employes a certain amount to go towards a fund for securing medical aid for the employes in case of need. The company itself contributed no part towards the fund, but derived no profit therefrom, save perhaps in the betterment brought about thereby in its labor conditions. Beyond making this weekly contribution, the employes took no part in the procuring of the medical aid. The company retained that function in its own hands.

'This was a business arrangement between the parties; and a part of the company's understanding was to use due care in providing the employes with a competent physician, or with two if needed. The Supreme Court of Missouri, in the case of Phillips v. St. Louis, etc., R. Co., 211 Mo. 419, 111 S.W. 109, 17 L. R. A. (N. S.) 1167, 124 Am. St. Rep. 786, 14 Ann. Cas. 742, has held that the company in such a case must go beyond employing a competent physician; that it 'must go further and competently treat the patient.' But the weight of authority seems to be that:

'Where an employer derives no profit from the retention of the hospital fund...