Texas & Pacific Coal Co. v. Connaughton

• Decision Date: 25 March 1899
• Citation: 50 S.W. 173
• Parties: TEXAS & PACIFIC COAL CO. v. CONNAUGHTON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

50 S.W. 173

TEXAS & PACIFIC COAL CO. v. CONNAUGHTON.¹

Court of Civil Appeals of Texas.

March 25, 1899.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Action by J. W. Connaughton against the Texas & Pacific Coal Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

John W. Wray, for appellant. Q. T. Moreland and Capps & Cantey, for appellee.

Conclusions of Fact.

STEPHENS, J.

Appellee was injured while mining coal for appellant in one of its mines at Thurber, Tex., in the year 1896, and was consequently treated, at the instance of appellant, by one of its physicians, Dr. Binney, though in an unskillful or negligent manner. This suit was brought to recover the damages caused by such improper treatment, and issued in a verdict and judgment for $1,500.

Appellant concedes that the verdict is conclusive against it upon the fact of unskillful or negligent treatment, and no complaint is made of the amount of damages allowed. The main contention, in different forms urged, seems to be that appellant was not liable for the unskillfulness or negligence of the doctor, since, as was alleged in its answer, due care had been used by it in selecting him, and his services had been furnished as a charity, and not for profit. On the other hand, appellee sought, and here maintains his right, to recover upon the ground that as a part of his contract of employment appellant agreed and undertook, in consideration of 50 cents per month, deducted from his wages, to furnish him competent medical and surgical treatment, and that appellant made a like deduction from the wages of all the rest of its employés, and in consideration thereof voluntarily assumed and undertook "to treat and care for properly and in a skillful manner" said employés in case of sickness or injury, and so undertook to treat appellee. Since the verdict sustains his contention, we quote with approval, from his brief, the following statement of the material facts and evidence in support thereof:

"J. W. Connaughton testified: `I went to Mr. Gordon, superintendent of the company, to get employment; asked him for work; and he gave me work, and directed me to go to the mine boss, and he would put me to work. I was to be paid one dollar a ton for coal. I went to the mine boss then, and got work. They kept out of my pay for hospital fee and blacksmith fee. They kept out other incidental expenses for powder and checks. When a miner was hurt, he was to get medical and surgical attention and hospital conveniences, for which he was to pay fifty cents per month, and that amount was kept out of my pay while I worked there. I did not send for the doctor. I believe the mine boss did.'

"R. H. Ward, assistant general manager of the Texas & Pacific Coal Company, testified: `We collect or deduct from the wages of all of our employés fifty cents per month, which goes to the hospital fund. We charge fifty cents a month for hospital funds. For that fifty cents per month we give the miner his medical attendance, hospital service, and everything the officers think proper in connection with the health and efficiency and maintaining of the people there. Every man is supposed to agree to the fifty cents deduction when we hire him. Most who come there understand it. It might have to be explained to him. We would explain it to him, of course,—tell him we would keep that for the purpose of employing a physician to attend him when sick or hurt. We never make any exception in the management of the mines on account of one man. If he objects to the deduction, we would still retain the fifty cents. If he objects to the management of the place, he don't have to stay, and he could leave; but we would hold the fifty cents, because we have undertaken to treat him when he is sick, or to pay for his treatment by any physician we have. The company makes contract with all the physicians, and the miners have nothing to do with employing the physicians, nor with the dispensation of this fund. A miner going out and calling any physician other than Dr. Binney would have to pay that physician himself. There are no physicians living there [in Thurber] except the two employed by the company. There were from 2,500 to 3,000 inhabitants in Thurber in 1896, and about 1,000 employés.' On the question of investigation Mr. Ward testified: `My recollection is that I wrote a letter for Col. Hunter to a brother of Dr. Binney, who is also a doctor, and he lived in Missouri or Illinois. That letter is the only investigation I know of. Dr. Binney, I think, is a nephew of Col. Hunter. There is no particular rule for the distribution of this fund. The miners have nothing to do with the dispensation of this fund. It is dispensed by the officers of the company, and under their discretion.'

"G. B. Paxton testified: `Upon hospital account for 1894 there was a credit of $7,080.98, and a debit of $3,773.48, which left a balance of $3,307.50. That balance represents the amount collected from the miners above the amount expended for 1894. During 1895 there was $6,558.83 collected and $6,431.83 expended. The balance to the credit of hospital fund from January 1, 1896, was $3,434.50, and January 1, 1897, it was $3,160.89. The fund had on hand January 1, 1898, $4,167.10. That balance is in the hands of the Texas & Pacific Coal Company. It is in some of their banks. They have a bank account, and, of course, keep their money in the bank. They do not keep any separate hospital account. They keep the hospital account separate in their business on the books, but don't keep their money separate. T...