Simon v. Hamilton Logging Co.

• Decision Date: 05 November 1913
• Citation: 76 Wash. 370,136 P. 361
• Court: Washington Supreme Court
• Parties: SIMON v. HAMILTON LOGGING CO. et al.

136 P. 361

76 Wash. 370

SIMON v. HAMILTON LOGGING CO. et al.

Supreme Court of Washington, En Banc.

November 5, 1913

Appeal from Superior Court, Snohomish County; John B. Yakey, Judge.

Action by N. P. Simon against the Hamilton Logging Company, a corporation, and another. From a judgment for defendants plaintiff appeals. Affirmed.

Willett & Oleson, of Seattle, for appellant.

Cooley & Horan and R. Mulvihill, all of Everett, for respondents.

CHADWICK J.

In April, 1909, defendant Hamilton Logging Company employed Dr R. G. Kellner to treat and care for such of its employés as might become sick or injured while in its employ. One dollar a month was deducted from the wages of each employé, and the whole sum so deducted was paid over to Dr Kellner in pursuance of a contract, the material parts of which are as follows: 'In consideration of the sum of one dollar ($1.00) lawful money of the United States, for each and every individual employed by the party of the second part, for a period of not less than one week nor more than one month, and ten cents daily for less than one working week, said party of the first part agrees to take care of treat and use such professional knowledge and skill as he is capable of in all cases of sickness and accident, of said employés of the party of the second part. Conditions: 1. Minor trivial accidents had ailments to be treated, but not to include bed and board. * * * 3. Contagious diseases while calling for treatment not to be admitted to the hospital. * * *' Plaintiff was employed by defendant logging company as a fireman, and had worked during the months of October, November, and December, 1910. On December 14th plaintiff's right great toe became sore and painful. On the 17th the pain had become so intense that he was compelled to quit work. He informed the foreman of his affliction, and was told to go to Dr. Kellner at Hamilton, for treatment, and on the morning of the 18th plaintiff walked to the hospital. Dr. Kellner then examined the plaintiff's toe, saying to the plaintiff 'that is a bad toe; a bad callous there.' He then gave plaintiff a prescription, with directions for its application. After obtaining the medicine prescribed plaintiff returned to his cabin at the logging camp. Dr. Kellner did not then offer to take plaintiff into his hospital for treatment, although it is apparent from the record before us that plaintiff's condition must have been serious, and that he was suffering intense pain. Plaintiff applied the remedy prescribed during the following two or three days, but without relief. The infection, as it proved to be, began to spread over the foot, causing it to swell. About the 20th of December Dr. Kellner came to the camp, but did not see the plaintiff. On the 21st plaintiff asked the bookkeeper of the company to call the doctor by phone. This was done, but the doctor did not come until the afternoon. He again examined plaintiff's foot, but did nothing, saying to plaintiff, 'Keep on with the salve.' No suggestion that plaintiff be taken to the hospital for treatment was made by the doctor, although plaintiff himself was so impressed with the seriousness of his condition that he asked the doctor to amputate the toe. On December 23d the camp was closed for the holidays, and all of the employés paid off, including the plaintiff, the $1 being deducted from their wages and the aggregate sum paid to Dr. Kellner. On the evening of the 22d plaintiff asked the company for a card that would admit him to the Sedro-Woolley hospital. This was refused, and plaintiff was told to go to the Hamilton hospital (Dr. Kellner's place) and stay there. Plaintiff then went by train to Sedro-Woolley, being supported and assisted on the trip by some of his fellow employés. On December 27th his toe was amputated. On January 12th following a portion of his foot was amputated, and aon March 1st his foot was amputated at the ankle. These successive amputations were necessary to arrest the spreading infection. Inasmuch as the remaining facts weave themselves into our discussion of the law of the case, we will make no mention of them at this time. Plaintiff began this action to recover damages against the doctor on the ground of general negligence and unskillful diagnosis and treatment, and against the logging company upon two grounds: First, that the company is liable in any event for the negligence of its agent; and, second, that it is liable for negligence in the employment of and retaining in its employ, an unskillful and incompetent physician and surgeon. Upon the trial, plaintiff having rested, the court entertained a motion to dismiss the case on account of the insufficiency of the evidence. The motion was sustained as to the logging company, but denied as to defendant Kellner. Whereupon it was agreed by counsel that a like order of dismissal should be entered in favor of Kellner, with the understanding that any disposition of the case which might be made by this court upon appeal as to the logging company, should also apply as to him. From a judgment of dismissal, plaintiff has appealed.

Upon the...