Parsons v. Yolande Coal & Coke Co.

• Citation: 91 So. 493,206 Ala. 642
• Decision Date: 13 October 1921
• Docket Number: 6 Div. 240.
• Court: Alabama Supreme Court
• Parties: PARSONS v. YOLANDE COAL & COKE CO.

91 So. 493

206 Ala. 642

PARSONS v. YOLANDE COAL & COKE CO.

6 Div. 240.

Supreme Court of Alabama

October 13, 1921

Rehearing Denied Nov. 17, 1921.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action by L. F. Parsons, as administrator, against the Yolande Coal & Coke Company, for damages for the death of his intestate. There was verdict for the plaintiff, which on motion was set aside, and plaintiff appeals. Affirmed.

W. M Sorrell and Vaughan & Silberman, all of Birmingham, and Ed De Graffenried, of Tuscaloosa, for appellant.

J. L. Davidson, of Birmingham, and H. A. & D. K. Jones, of Tuscaloosa, for appellee.

GARDNER J.

Appellant, as administrator of the estate of Sam Parsons, deceased, brought this suit against the appellee for the recovery of damages because of the death of his intestate, resulting from an attack of influenza. There was judgment for the plaintiff, which was set aside by the trial court on motion for a new trial; and, from the judgment of the court setting aside this verdict, the plaintiff prosecutes this appeal.

The defendant is an industrial corporation, engaged in the mining of coal and its preparation for the market, employing several hundred men in and about the conduct of its business. Plaintiff's intestate was one of the defendant's employees. At the time of intestate's employment, it was defendant's custom to deduct a stipulated sum from each of its employees for medical and hospital services and for the employment of a physician for the purpose of treating such employees in case of illness. Plaintiff's intestate being an unmarried man, the amount deducted for this purpose was 75 cents per month; and we are of the opinion there is sufficient evidence tending to show that sum was legally deducted from the intestate's wages, and with his consent. The evidence shows that all the funds so collected were devoted specifically to such purposes or a separate fund for the benefit of the employees, and that the defendant corporation derived no profit therefrom. It further appears that the defendant, in 1910, entered into a contract with one Dr. Carpentur, whereby the latter was to render medical and surgical attention to the employees of the company in cases of sickness and injury, the defendant to make collections of a stipulated amount each month from each employee and pay such collection to such physician. While this contract expired under its terms on September 1, 1911, yet the arrangement was continued until and during the period of time here involved, in October, 1918.

Plaintiff's intestate became sick on October 16, 1918, and died on the 26th of that month. It was without conflict that Dr. Carpentur was a competent and skillful physician, and of good standing in his profession; and there was no evidence that defendant failed to exercise due and reasonable care in the selection of a competent and skillful physician.

Counts 17 and 18 rested for recovery upon the averments of malpractice on the part of the physician. They contained no averment of a failure on the part of the defendant to exercise reasonable care and diligence in his selection. Upon consideration of the motion for a new trial, the court below reached the conclusion that these counts were subject to demurrer, for the reason that, under such contract, as alleged in the complaint, the full measure of the duty of the defendant was to exercise reasonable care and diligence in the selection of a competent physician, and also, as the evidence was without conflict to the effect there had been no failure in this respect, that the general charge requested by the defendant as to these counts should have been given. For these reasons, the trial court granted the new trial, as disclosed by his opinion which is set out in the record.

While other questions were presented in the trial of the cause, counsel for appellant confine themselves to a discussion of counts 17 and 18, and our consideration will likewise be limited to the question there presented.

Mr. Labatt, in his work on Master and Servant (2d Ed.) vol. 5, p. 6216, says:

"The decided preponderance of authority is in favor of the doctrine that, under an arrangement of this character, he is not accountable for the negligence or unskillfulness of physicians or surgeons employed by him, unless he has failed to exercise due care in selecting them. One of the considerations to which his restricted liability has been referred is that persons engaged in business enterprises cannot be supposed to possess the technical skill required for proper treatment of the sick and injured, and must perforce rely on practitioners who possess the requisite qualifications. But it is manifest that, unless the practitioners retained by a master are independent contractors, the mere fact that the work required was such as to demand the exercise of special skill would not necessarily involve, as a corollary, the master's exemption from liability for their negligence. It would seem to be preferable therefore, to rely directly upon the same conception as that which is adverted to in the preceding paragraph, and treat his exemption as an appropriate deduction from the fact that the physicians or surgeons employed by him are not his servants."

We have examined may authorities treating this question, and find ourselves in full accord with the statement from the quotation above, to the effect that the overwhelming weight of authority holds the employer under arrangements of this character, not accountable for the malpractice of the physician employed, unless he has failed to exercise due care in his selection. The reasons given by the authorities are varied-some of them holding to the doctrine that the employer is in the distribution of a trust fund devoted to charitable purposes, and for this reason could not be subjected to liability. In Tucker v. Mobile Infirmary Asso., 191 Ala. 572, 68 So. 4, L. R. A. 1915D, 1167, this court reviewed the authorities touching this doctrine, and repudiated the same, so far as it could have any application to a stranger or to one who secured the services of the hospital paying full compensation therefor. We do not consider that the case here in point bears any such analogy to the Tucker Case as to require an extensive discussion thereof, or any necessity to call attention to the points of differentiation. Indeed, the Missouri Court of Appeals in Haggerty v. St. L., K. &amp N.W. R. Co., 100 Mo.App. 424, 74 S.W. 456, reached the conclusion that such an arrangement could not be classed as a charity within that doctrine; but we need not enter into a...