Reese v. Pennsylvania Railroad Co.

• Decision Date: 03 January 1911
• Docket Number: 153
• Citation: Reese v. Pennsylvania Railroad Co., 229 Pa. 340, 78 A. 851 (Pa. 1911)
• Parties: Reese, Appellant, v. Pennsylvania Railroad Company
• Court: Pennsylvania Supreme Court

78 A. 851

229 Pa. 340

Reese, Appellant, v. Pennsylvania Railroad Company

No. 153

Supreme Court of Pennsylvania

January 3, 1911

Argued October 4, 1910

Appeal, No. 153, Oct. T., 1910, by plaintiff, from judgment of C.P. Armstrong Co., Sept. T., 1909, No. 24, on verdict for defendant in case of Charles Reese v. Pennsylvania Railroad Company, a corporation, lessee or owner and operating the Allegheny Valley Railway Company. Affirmed.

Trespass to recover damages for personal injuries. Before PATTON, P.J.

The facts are stated in the opinion of the Supreme Court.

The court gave binding instructions for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned was in giving binding instructions for defendant.

The assignments of error are overruled and the judgment is affirmed.

C. E Harrington and Harry C. Golden, for appellant.

Orr Buffington, with him O. W. Gilpin, for appellee.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE BROWN:

Charles Reese, the plaintiff below, was a fireman in the employ of the defendant company. On January 2, 1907, he applied to its relief association for membership. His application was accepted and his dues were paid up to August 7, 1907, when he sustained the injuries complained of in this action. After being injured he received benefits from August 6, 1907, to April 3, 1908. On April 2, 1908, he was notified by Doctor Sahm, the surgeon for the relief association, to report for examination of his injuries. After having so reported, the doctor gave him what is called a "return to duty card." He returned to duty and, having worked nearly six months, received a furlough for sixty days, but again resumed work as a fireman and lost one of his legs in March, 1909, while in the employ of the defendant company. The claim in this case, however, is not for the injuries sustained by the appellant in 1909, but for those suffered on August 7, 1907, and his contention is that he is entitled to recover because he was not in a physical condition to return to work when Doctor Sahm gave him his return to duty card. The complaint upon which he seeks to recover is that, if the doctor had examined him as a prudent physician should have done, it would have been discovered that he was not fit to return to duty, and in view of the alleged fraud practiced upon him by the doctor, he now contends that his agreement when he became a member of the relief association and what he did under it do not stand in the way of his right to compel his employer to pay him.

What the surgeon for the relief association did on April 2, 1908 is not to be regarded as involved in this controversy. If the appellant were seeking to recover benefits withheld from him by the association as the result of his examination by the surgeon, his complaint of the conduct of that officer might be pertinent, though, under the sixty-fifth regulation of the association, it seems that if he was dissatisfied with the decision of the surgeon, his right was to appeal to the superintendent of the relief department, and from the latter's decision, if unsatisfactory, to an advisory committee; but on this we need not dwell. The single question before us is whether the appellant, by his own act, has precluded himself from...