Miller v. Beaver Hill Coal Co.

• Citation: 85 P. 502,48 Or. 136
• Parties: MILLER v. BEAVER HILL COAL CO.
• Decision Date: 22 May 1906
• Court: Supreme Court of Oregon

85 P. 502

48 Or. 136

MILLER v. BEAVER HILL COAL CO.

Supreme Court of Oregon

May 22, 1906

Appeal from Circuit Court, Coos County; L.T. Harris, Judge.

Action by Victor Miller against the Beaver Hill Coal Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action to recover for the breach of an alleged contract by which the defendant agreed to provide the plaintiff with necessary medical and surgical attention, at a hospital maintained by it, in case of his injury while in its employ. The facts, as disclosed by the testimony, are these: The defendant company is engaged in coal mining at Beaver hill in Coos county. It has a hospital at its mine in charge of a physician at which its employés, and those of subcontractors paid through its office, are entitled to be cared for free in case of sickness or injury while in its service. For the support and maintenance of the hospital $1.50 a month is deducted from the wages of each employé by their consent, or at least without objection from them. In August, 1904, the plaintiff, while at work for a subcontractor, was seriously injured by an iron splinter penetrating the abdominal wall. He was taken to the company's hospital and the wound examined by Doctor Chambers, who was temporarily in charge during the absence of the regular physician. The doctor found the wound to be of such a character as to require a surgical operation which could not be performed by him alone or with the facilities at his command. He telephoned to Coquille, the nearest town, for assistance, but was unable to obtain a surgeon from that place and thereupon at plaintiff's request telephoned to Marchfield to Doctor Mingus, who came out to the mine and performed the necessary operation. Mingus charged the plaintiff $250 for his services, and, defendant refusing to reimburse him therefor, he brought this action to recover the amount. At the close of the plaintiff's testimony the defendant moved for a nonsuit, which motion was overruled and a verdict rendered in favor of plaintiff. From the judgment entered on the verdict, the defendant appeals.

J.L Coke, for appellant.

J.M Upton, for respondent.

BEAN C.J. (after stating the facts).

This action is founded on contract, and before the plaintiff can recover he must show that defendant agreed to furnish him with necessary medical and surgical attendance in case of injury, and that it neglected to comply with its contract. The only evidence on this question was the testimony of the plaintiff and the witnesses Bjorquist Anderson, and Carlson. The plaintiff testified that for sometime prior to his injury he had been assisting in getting out mine timbers for the defendant and that it retained $1.50 each month from his wages "for the hospital." Bjorquist said the defendant had a hospital at the mine where sick and injured employés were cared for free, and that $1.50 a month was regularly deducted from the wages of each employé by the company for its support, but that he did not...