Neil v. Flynn Lumber Co.

• Decision Date: 25 April 1916
• Citation: 78 W.Va. 235
• Parties: Neil v. Flynn Lumber Co.
• Court: West Virginia Supreme Court

78 W.Va. 235

Neil

v.Flynn Lumber Co.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1916.

Decided April 25, 1916.

1. Injury to Servant.

For the principles of law governing this ease see Neil v. Flynn Lumber Company, 71 W. Va. 708. (p. 236).

2. Master and Servant Injuries to Servant Sufficiency of Evidence.

There was a judgment for defendant in the circuit court upon demurrer to the evidence. The evidence calls for a reversal of the judgment. (p. 236).

Error to Circuit Court, Nicholas County.

Action by Orville Neil against the Flynn Lumber Company. Judgment for defendant, and plaintiff brings error.

Reversed and rendered.

Fred 0. Blue, G. G. Duff, S. E. King and W. G. Brown, for plaintiff in error.

Alderson &Breckinridge and McClintic, Mathews & Campbell, for defendant in error.

Mason, Judge:

The case was before this conrt on a former occasion, and the legal questions arising on the declaration decided. 71 W. Va 708. We decided in that case that where an incorporated company agrees with an employee, for a consideration therefor, to furnish a competent and skilled physician to attend and treat him in sickness or accident occurring while in its service, it is bound thereby to select and retain for that purpose a physician having the knowledge and skill ordinarily possessed by other members of his profession in the same community and if the company fail to perform the duty so imposed, and by reason thereof the employee is injured, the company is liable in damages to the servant, to the extent that the physician himself would be, were he sued for the injury.

The case was remanded to the circuit court of Nicholas County, and a trial had. Both parties introduced testimony, and when it was all in, the defendant demurred to the evidence, and the plaintiff joined in the demurrer. The question of the amount of damages was submitted to the jury. Thereupon the jury returned a conditional verdict for the plaintiff for $3,000.00.

The court sustained the demurrer to the evidence and dismissed the suit, and entered judgment against the plaintiff in favor of the defendant for costs. The evidence is regularly certified by bill of exceptions; and writ of error was allowed to this court,

There are four things which the plaintiff must prove to entitle him to a judgment, namely:

First; That he was in the employ of the defendant at the time he was injured. The evidence is quite clear that he was employed by the defendant, and was at work for the defendant at the time of the accident.

Second; That by the contract of employment the defendant agreed for a consideration, to furnish the plaintiff a com- petent physician to attend and to treat him for any sickness or accident occurring while in its service. The testimony shows that such was the contract, and that a certain sum was deducted from plaintiff's wages every month to pay for medical services. The evidence is somewhat confusing, by reason of the fact that the defendant did not have him enrolled by name. The account was carried in the name of the "Neil team, '' which included the horse and driver, and the plaintiff was the driver. The defendant recognized its duty to furnish a physician for the plaintiff by doing so.

Third; The plaintiff must prove not only that he was injured while in the defendant's services, and that he needed the care and attention of a physician, but also that it was the duty of the company to furnish him a competent physician.

Did the defendant furnish a competent physician to attend the plaintiff? Upon this subject the evidence is somewhat contradictory. The defendant was notified of the injury to the plaintiff, and sent Dr. Dunbar at plaintiff's request to attend him. Plaintiff's leg was broken. Dr. Dunbar reduced the fracture, and it is conceded that Dr. Dunbar was a competent and skilled physician. Dr. Dunbar says in his testimony that he was sent by the defendant to attend the plaintiff, and to do what was necessary to be done. Prom this evidence the jury may well have interpreted this arrangement to have been that Dr. Dunbar would set the leg, and then have Dr. Cline take charge of the case, and that this was an arrangement made by the defendant and the two doctors. This would make the employment by the defendant, and not the act of Dr. Dunbar. When Dr. Dunbar arrived at Neil's, he found Dr. Cline at the house. Dr. Dunbar took charge of the patient, and properly set the bone and dressed the wound, and then left him in care...