James v. Yazoo & M. V. R. Co.

• Decision Date: 15 April 1929
• Docket Number: 27843
• Citation: 121 So. 819,153 Miss. 776
• Parties: JAMES v. YAZOO & M. V. R. CO. [*]
• Court: Mississippi Supreme Court

121 So. 819

153 Miss. 776

JAMES v. YAZOO & M. V. R. CO. ^[*]

No. 27843

Supreme Court of Mississippi

April 15, 1929

Division B

Suggestion of Error Overruled May 6, 1929.

APPEAL from circuit court of Wilkinson county, HON. R. L. CORBAN Judge.

Suit by T. L. James against the Yazoo & Mississippi Valley Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Jones & Stockett, for appellant.

This case is based wholly on the default of the defendant company in not discharging its contractual obligations. We may, for the argument, admit the soundness of the doctrine that where a master makes deductions from wages of his servants, and administers the fund so collected for the benefit of those who fall sick or sustain injury while in his employment, and devotes the entire amount thus collected to the payment of the physician to render medical assistance and receives himself no pecuniary profit from the fund thus created, he is not liable for the negligence or unskillfulness of the physician or surgeon employed, provided he has exercised due care in selecting the physician. Eastman Gardiner Co. v. Permenter, 111 Miss. 813, 72 So. 234. First, there was no proof that the entire fund collected was devoted to the Hospital Department; and second, there was no proof of any care being exercised in the selection of any physician.

The case at bar is wholly dissimilar from the Eastman-Gardiner case, supra. The true rule is well stated in Schloss-Sheffield, etc., Co. v. Maxwell (Ala.), 104 So. 141, as follows: "It seems to be generally recognized that when an employer makes a valid contract with an employee to furnish medical attention in case of sickness or injury, and fails to do so, there is a liability on the part of the employer to the employee for the damages resulting from such failure."

Tucker & Tucker, H. D. Minor, Charles N. Burch and Clinton H. McKay, for appellee.

No sort of liability attached to the defendant for the original injury to plaintiff's eye. He does not make that claim. The hospital department for the defendant company is operated as an eleemosynary institution without gain or profit whatever and solely for the benefit of employees. This fact the plaintiff well understood and did not deny. The character of the hospital department appeared from the evidence offered by plaintiff himself. The duty of the defendant extended no further than the exercise of due care in selecting physicians and providing proper hospital accommodations. That duty discharged, no liability whatever rests on the defendant for the negligence or lack of attention on the part of its surgeons or hospital attendants. Gardiner Co. v. Parmenter, 111 Miss. 813; Illinois, etc., Ry. Co. v. Cash (Ky.), 299 S.W. 590; Illinois, etc., Ry. Co. v. Moody, 23 F.2d 902. While the declaration is liberal in its charges, no proof was offered by the plaintiff to show that the physicians employed by the defendant in its hospital department were not physicians of high repute and character in their profession, nor was any evidence offered by the plaintiff to show that the hospital to which he was sent at New Orleans was not properly equipped and maintained. See, also, Parsons v. Coal Co., 206 Ala. 642; Carr v. No. P. Ry. Co. (C. C. A.), 273 F. 511; Deming v. Price (C. C. A.), 276 F. 668; Congdon v. La. Co., 145 La. 209.

The brief for appellant cites but a single authority--Schloss-Sheffield Co. v. Maxwell, 104 So. 841. The proof there developed that the employee was treated for a time by the company's physician but that thereafter the physician, though summoned, wholly failed and refused to administer further treatment. It was held that this was a violation of the contract between the employer and employee which gave rise to liability. That decision is squarely in conflict with our own case of Gardiner v. Parmenter, 111 Miss. 817, for it there appeared, and the jury so found, that the company physician attended the employee for a while and then failed to give him further attention. This court held that such failure on the part of the company physician gave rise to no liability on the part of the master; that the master had discharged his full duty upon employing a physician of repute and character. The two cases are wholly irreconcilable. The Schloss-Sheffield case, 104 So. 841, is also wholly inapplicable here for the reason that the plaintiff's own testimony shows very clearly there was no failure to furnish him physicians and hospital service.

Argued orally by A. H. Jones, for appellant, and H. D. Minor, for appellee.

OPINION

ETHRIDGE, P.J.

The appellant, T. L. James, was employed by the appellee, the Yazoo & Mississippi Valley Railroad Company, on an application for employment, and while in the employ of the appellee company received an injury to his eye by reason of a cinder striking and lodging in it. At the time of his injury, he had been promoted to the position of engineer, occasionally performing this duty on special runs, but when not acting in this capacity, he would perform the duties of a fireman, and was doing so at the time of the injury.

With the application for employment was an agreement as to hospital department rules and regulations, by which an employee of the appellee company would permit certain deductions from his wages to go to the maintenance of a hospital for the benefit of the employees of the appellee railroad, and also a copy of the rules and regulations with respect to the operation of the hospital department for the benefit of such employees. This contract provided that in accordance with the desire on the part of the company to better safeguard the health and safety of its employees there is established a hospital department, the purpose and object of which is to provide for the care of the sick and injured employees, but without gain or profit to the railroad company; that such hospital department is in the nature of a co-operative association, supported by a trust fund raised by monthly...