Galveston, H. & S. A. Ry. Co. v. Hennigan

• Decision Date: 21 October 1903
• Citation: 76 S.W. 452
• Parties: GALVESTON, H. & S. A. RY. CO. v. HENNIGAN.
• Court: Texas Court of Appeals

76 S.W. 452

GALVESTON, H. & S. A. RY. CO. v. HENNIGAN.

Court of Civil Appeals of Texas.

October 21, 1903.

Appeal from District Court, Uvalde County; I. L. Martin, Judge.

Action by J. M. Hennigan against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Baker, Botts, Baker & Lovett and Ellis & Love, for appellant. Fenley & Weir, for appellee.

NEILL, J.

This is an action brought by appellee against appellant to recover damages which he claims to have sustained from the alleged negligence of the latter in failing to furnish him medical treatment, hospital accommodation and service in accordance with its contract with him while he was sick in the company's employment. The defenses pleaded were not guilty and contributory negligence. The trial resulted in a verdict and judgment in favor of plaintiff for $3,000, from which the defendant has appealed.

For the purpose of disposing of this appeal and illustrating the principles of law upon which it is determined, we will briefly state the substance of the evidence upon which the plaintiff relies for an affirmance of the judgment. During the year 1901, prior to the 1st day of November, plaintiff was in defendant's employment at Uvalde, as a section foreman and boarding master. Under the contract of employment it was agreed that the defendant should deduct from plaintiff's wages 50 cents per month, to be applied, according to the rules and regulations of the company, to its hospital fund. In pursuance of the agreement, such deduction was made during the term of plaintiff's employment. In consideration of such deduction, plaintiff was, by its contract, entitled to receive from the company medical treatment in case of sickness or physical injury as long as, in the opinion of the company's physician attending him, it was necessary, not to exceed one year's continuous treatment at hospital or two years' continuous treatment outside of the hospital. Under the rules of the company, an employé, after leaving its service, was not entitled to the benefits of medical and surgical treatment; but on making application therefor on the date of the termination of the term of his employment to the superintendent and chief surgeon of the department in which he was employed he would be entitled to such treatment for disabilities incurred prior to his discharge while in the company's employ, and to a continuance of the treatment until discharged as cured by some surgeon of the company. To entitle an employé to the medical or surgical treatment, the rules of the company require an order on a certain form signed by some one authorized to issue it, to be given to the company's surgeon at the time his services were first required. This order is called a "permit." When such permit was issued, if the surgeon saw fit to send the employé in whose favor it was given to the hospital, he was required to sign and return it to him, and then he was to take it to the station agent, who would countersign it, and it would serve as a pass over the company's road to the hospital, and entitle him to medical treatment therein. At the time plaintiff claims that he was in need of and entitled to medical treatment, which he alleges was negligently refused him by the company, its roadmaster, J. P. Kelley, was the officer whose duty it was to issue such permit. On the 15th day of October, 1901, plaintiff, while in defendant's employment was sick with a fever, and suffering with bladder and kidney trouble. On that day he notified Mr. Kelley of his sickness, and requested him to send a man to take his place, but did not then notify him that he was in need of a physician, or request a permit for medical treatment. But on the 23d he wrote Mr. Kelley that he was still sick, and renewed his request to send a man to take his place, and to furnish him with a hospital permit. Such permit not being furnished him, plaintiff renewed his request to Kelley by wire, and in response the permit was sent on the next day, the defendant at the same time discharging plaintiff from its services. On the 1st of November the plaintiff in person presented the hospital permit to the company's local physican and surgeon at Uvalde, and asked to be sent to its hospital at San Antonio for treatment. This request was refused upon the ground that plaintiff was not entitled to medical treatment from the company because he had been discharged from its service. Defendant company never gave plaintiff the medical treatment nor furnished him the hospital service and accommodation contemplated by its contract with him. After his discharge plaintiff was examined and treated for his ailments by other physicians, but on account of financial condition was unable to procure such treatment, service, and accommodation as the company by its contract had agreed to furnish him. He never recovered from the disease of his kidneys, and has suffered and his health grown worse from it ever since the 15th of October, 1901, and his physician gives it as his opinion that it is incurable. The evidence in some degree tends to show that, if plaintiff had received proper medical treatment at the incipiency of the disease,...