Kain v. Arizona Copper Co.

• Decision Date: 28 June 1913
• Docket Number: Civil 1300
• Citation: 14 Ariz. 566,133 P. 412
• Parties: RICHARD KAIN, Appellant, v. THE ARIZONA COPPER COMPANY, LIMITED, a Corporation, Appellee
• Court: Arizona Supreme Court

133 P. 412

14 Ariz. 566

RICHARD KAIN, Appellant, v. THE ARIZONA COPPER COMPANY, LIMITED, a Corporation, Appellee

Civil No. 1300

Supreme Court of Arizona

June 28, 1913

APPEAL from a judgment of the Superior Court of the County of Greenlee. F. B. Laine, Judge. Reversed and remanded.

The facts are stated in the opinion.

Mr. L Kearney, for Appellant.

Mr. W C. McFarland, for Appellee.

OPINION

ROSS, J.

On July 3, 1912, appellant filed his complaint against appellee for damages. On the theory that it was an action for personal injuries, the court sustained a special demurrer raising the one year statute of limitations. It is not necessary to state the facts of the original complaint; suffice it to say that it contained, in legal effect, the facts alleged in the amended complaint which was filed on October 14, 1912. In the amended complaint the appellee, which we shall hereafter designate as the mining company, is described as a corporation engaged in the business of mining, smelting railroading, merchandising and conducting of hospitals in Greenlee county, Arizona. It is alleged that the mining company owned and conducted at Clifton, Metcalf and Morenci hospitals for gain and profit; that, for the purpose of shielding itself from actions for damages for negligence and malpractice of its physicians and surgeons, said hospitals are carried on under the name of Clifton Accident Benevolent Society, which is not a copartnership nor a corporation, but is a general hospital business conducted, owned and managed by the mining company in connection with its other business for hire, gain, and profit.

The contract upon which the complaint is bottomed is alleged as follows: "That in the month of September, 1908, and for more than two years prior thereto, the plaintiff was in the employ of the defendant in and about said mining and smelting business at Morenci, Graham (now Greenlee) county, territory (now state) of Arizona, as engineer of a stationary engine at the agreed compensation of $3.50 per day. That a part of said agreement and contract of employment between plaintiff and defendant was that the plaintiff should pay to the defendant each month while in the employ of the defendant out of his wages as such employee the sum of $1.80 per month for the support and maintenance of the defendant's said hospitals.

"That, in consideration of said payment of said sum of money to the defendant from month to month, the defendant contracted and agreed with the plaintiff to furnish plaintiff with hospital accommodations in said hospitals and to provide and furnish trained and capable nurses and skilled and competent physicians and surgeons in said hospitals for the care and treatment of the plaintiff in the event that he should become sick or disabled or accidentally injured while working for the defendant and in the regular course of his employment, and contracted and agreed, for the consideration aforesaid, to furnish the plaintiff with the services of skilled and competent physicians and trained and capable nurses in case of any injury to the plaintiff while working for the defendant as aforesaid. (5) That under said contract of employment, and in consideration of the payment by the plaintiff to the defendant from month to month of the said sums of money while plaintiff worked for the defendant, it became and was the duty of the defendant, in case the plaintiff should become injured while working for the defendant under said contract, to furnish the plaintiff with proper hospital accommodations and to treat him with due care and skill therein and furnish him the services of skillful and competent physicians and surgeons and trained and capable nurses, and to use and exercise due and reasonable care in the selection of such nurses and physicians and surgeons; but the plaintiff alleges that, on the contrary, the defendant, neglecting and disregarding its duty in the premises and under said contract and agreement with the plaintiff, when the plaintiff became injured while working for the defendant, as hereinafter alleged, did not furnish the plaintiff with proper hospital accommodations in said hospitals, and did not treat him in a careful nor skillful manner therein, and did not furnish him the services of skilled or competent physicians or surgeons or of trained or capable nurses, and did not use or exercise due or reasonable care in the selection of such nurses and physicians and surgeons as were furnished to the plaintiff."

There follows the allegations of accidental injury by a fall in which appellant's left femur, hip joint, and left leg were greatly injured, his entrance into the hospital on September 29, 1908, for treatment, where he remained until February 18, 1910, when he was sent by the mining company to the Presbyterian Hospital at Chicago for further treatment, where he was treated until June 5, 1910, when he was discharged. That the first examination of his injury in September, 1908, was negligent and unskillful and without due care and a failure to discover that the leg was broken or the femur fractured, and of incompetent treatment until February 10, 1909. That on the last-mentioned date the physician and surgeon in charge discovered that the femur was fractured and performed an operation thereon and left foreign matter in and about said fracture which tended to prevent a union thereof, and that the treatment thereafter was negligent and unskillful until February 10, 1910, when appellant was sent to Chicago, as aforesaid. There is the allegation that the mining company did not exercise due care and caution in the selection of its physicians and surgeons, and that it retained them in its employment after knowledge of their unfitness and incompetency.

To this amended complaint there was interposed a general demurrer and special demurrer raising the one, three, and four year statute of limitation. The demurrers were sustained.

The cause of action stated in the amended complaint being the same cause of action as alleged in the original complaint, we must look to the date of filing the latter to determine if, when the action was brought, limitation had run.

It is not an action for personal injury nor for malpractice by the mining company. The complaints, both original and amended allege a contract between appellant and mining company by which the former was to pay the latter a monthly sum of $1.80 and the latter in consideration thereof, in case of sickness or injury, was to furnish him proper...