Thomas v. Postal Telegraph-Cable Co., 1715-6256.

• Decision Date: 28 November 1933
• Docket Number: No. 1715-6256.,1715-6256.
• Parties: THOMAS et ux. v. POSTAL TELEGRAPH-CABLE CO. et al.
• Court: Texas Supreme Court

Page 282

65 S.W.2d 282

THOMAS et ux. v. POSTAL TELEGRAPH-CABLE CO. et al.

No. 1715-6256.

Commission of Appeals of Texas, Section A.

November 28, 1933.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by J. C. Thomas and wife against the Postal Telegraph-Cable Company and another. Judgment of the district court for defendants was affirmed by the Court of Civil Appeals [48 S.W.(2d) 422], and plaintiffs bring error.

Affirmed.

E. W. Napier, of Wichita Falls, for plaintiffs in error.

Bullington, Humphrey & King, of Wichita Falls, for defendants in error.

CRITZ, Judge.

This suit was instituted in the district court of Wichita county, Tex., by Mr. and Mrs. J. C. Thomas, against Postal Telegraph-Cable Company of Wichita Falls and Southern Railroad Company to recover damages for the death of their 16 year old son, alleged to have resulted from the negligence of such companies. The case was tried in the district court with a jury. At the close of the testimony, the court instructed a verdict for the defendant companies. The verdict was returned as directed, and judgment entered accordingly. On appeal by the Thomases, this judgment was affirmed by the Court of Civil Appeals at Fort Worth in an opinion by Judge Conner. The late Judge Buck dissented. 48 S.W.(2d) 422. The Thomases bring error.

Since the verdict was instructed in the district court for the defendant companies, we must view the evidence in its most favorable light for the Thomases. If there is any evidence in the record of probative force which would justify a finding in favor of the Thomases, the judgments of the two lower courts should be reversed and the cause remanded to the district court for a new trial. It therefore becomes necessary for us to review the facts.

It appears that Elmer Thomas, the 16 year old son of Mr. and Mrs. Thomas, was employed by these two companies. All employees of such companies worked under an agreement with their employers to the effect that, in the event of sickness or injury from any cause, the companies would administer a certain fund to be used for the purpose of furnishing all necessary and proper medical and hospital services. Elmer Thomas, while employed by the two companies, became sick or infected with tonsillitis, which at first only temporarily incapacitated him from work. In accordance with the agreement above mentioned, due application was made to Dr. R. C. Smith, chief surgeon of the companies, who was in charge of its medical staff for the purpose of carrying out the agreement between the companies and their employees. It appears that Dr. Smith treated Elmer from about December 11, 1928, until about March 8, 1929, when he stated that he was unable to do anything further for him, and expressed the opinion that he would die. Elmer was never operated on or his tonsils removed.

The Thomases contend that Dr. Smith was guilty of negligence in failing to remove Elmer's affected tonsils and in failing to furnish hospital facilities and in other ways, as the result of which the boy died on July 17, 1929. For the purpose of this opinion we will treat the case as though the record raises the fact question as to Dr. Smith's negligence. In justice to Dr. Smith, however, we wish to say that we do not hold him negligent as a matter of law.

The vital question in this case, as presented to us, is not whether Dr. Smith was negligent in treating this boy, but whether the companies were negligent in administering the above-mentioned fund which we will now discuss.

The undisputed evidence shows that the railroad company, and the telegraph company occupied the same offices, and that the operative business of both were conducted by the railroad company. The two companies had an arrangement between themselves and their employees by which they collected from such employees a certain percentage of their wages or salaries. The percentage collected from Elmer amounted to 50 cents per month. This fund, under the plan, was to be used to pay the doctor's bills and hospital fees for employees who became sick or got injured while employed by such companies. It appears that the question of negligence of the companies did not enter into the rights of the sick or injured employee, and neither was it important whether the sickness or injury resulted from the employment.

It was further shown that the fund was actually administered by the railroad company. As so administered, no separate hospital association was maintained. The railroad company employed Dr. Smith as its chief surgeon, and he had other doctors working under him. When an...