Tompkins v. The Pac. Mut. Life Ins. Co.
| Decision Date | 02 May 1903 |
| Citation | 53 W.Va. 479 |
| Court | West Virginia Supreme Court |
| Parties | Tompkins v. The Pacific Mutual Life Insurance Company. |
Only a right of examination, as to an injured person entitled to weekly indemnity under an accident insurance policy, is conferred upon the company issuing the policy, by the fololwing clause, contained therein: "Any medical adviser of the company shall be allowed to examine the person, or body of the injured in respect to an injury or cause of death in such manner and at such times as he may require." (p. 491).
The relation of master and servant subsists between the company and its medical adviser in the exercise of such right of examination, and the company must answer for injuries, resulting from the negligence or misconduct of its agent in the premises, (p. 492).
Though the insured is not bound to submit to such examination, and may refuse at the risk of loss of his indemnity, or of litigation on account of his refusal, he may submit to it without losing his right to exact care and skill in its exercise; and it is no defense to his action that he consented to examination in a particular manner, if he did so in pursuance of a request or demand that it be so made. (p. 491).
Between the physician and insured, in such cases, the law, governing the relations of physician and patient, does not apply. (p. 499).
Where the injury of the insured is a sprain of the foot, requiring a plaster cast or similar appliance to hold the injured ligaments in place until they heal or regain strength, and the agent, in making the examination, removes, and fails to replace, such appliance, and injury results therefrom, he is guilty of negligence for which his principal must answer in damages, (p. 499).
The court properly refuses an instruction to the effect that the jury, in passing upon the testimony of a party, may take into consideration his situation and interest in the result of the verdict and all the circumstances surrounding him, and give to it only such weight as they may deem it fairly entitled to, when, a witness against him is deeply interestd in a moral sense, and no such direction as to his testimony is included, (p. 494).
Error to Circuit Court, Cabell County.
Action by George H. Tompkins against the Pacific Mutual Life Insurance Company. Judgment for plaintiff. Defendant brings error.
Affirmed.
Simms & Enslow, for plaintiff in error.
Harvey, Wiatt & Switzer, for defendant in error.
poeeen"barger, Judge '.
On the 30th day of September, 1898, George H. Tompkins, a resident of Clifton Forge, Virginia, instituted an action in the circuit court of the United States in the district of West Virginia, against the Pacific Mutual Life Insurance Company, a California corporation, doing business in West Virginia, for the recovery of damages for an alleged wrong, on an alleged cause of action accruing to him in October, 1897, in which action he recovered a judgment, which was afterwards reversed by the United States Circuit Court of Appeals, and the action directed by said court to be dismissed for want of jurisdiction, which was accordingly done by the said circuit court. Within one year after the dismissal aforesaid, to-wit, on the 3rd day of November, 1900, said Tompkins instituted this suit in the circuit court of Cabell County for the same cause of action, alleging in his declaration the prosecution and dismissal of said former action, and that this action was brought within one year after said dismissal. To the declaration and each count thereof, the defendant demurred, after having had oyer of the writ and return, which demurrer was overruled, and thereupon a plea of not guilty was entered. The defendant plead also the statute of limitations, and the plaintiff was permitted to file his replication in writing to said plea, setting up the pendency of said former suit for the same cause of action, its dismissal for want of jurisdiction and the commencement of this suit within one year thereafter. Trial was had and a verdict rendered for the plaintiff, assessing his damages at two thousand dollars, and, after overruling a motion to set aside the verdict, judgment was rendered accordingly.
Said replication was filed under section19 of chapter 104 of the Code, which reads as follows: "If any action, commenced within due time, in the name of or against one or more plaintiffs or defendants, abate as to one of them by the return of no inhabitant, or by his or her death or marriage, or if, in an action commenced within due time, judgment (or other and further proceedings) for the plaintiffs should be arrested or reversed, on a ground which does not preclude a new action for the same cause, or if there be occasion to bring a new suit by reason of the said cause having been dismissed for want of security for costs, or by reason of any other cause, which, could not be plead in bar of an action, of the loss or destruction of any of the papers or records in a former suit which was in due time; in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, dismissal or other cause, or after such arrest or reversal of judgment, or such loss or destruction but not after."
In support of its contention that the court erred in permitting said replication to be filed, the plaintiff in error relies upon two Virginia decisions and one Tennesse decision, and the defendant in error relies upon a decision of the Supreme Court of the United States, construing the Tennessee s.atute and an Ohio decision construing a similar section of the Ohio Code. The first Virginia case is Gray's Adm'x. v. Borryman, 4 Munf. 181. The Virginia statute construed in that case provided that, if judgment for the plaintiff be reversed by error, or judgment be given against the plaintiff upon matter alleged in arrest of judgment, that he take nothing by his plaint, writ or bill a new action might be commenced within one year after such reversal or judgment against the plaintiff. The other case is that of Manuel v. Railroad Co., 37 S. E. 957, construing the present Virginia statute which provides that if an action commenced in due time abate by the return of no inhabitant or by the death or marriage of the defendant, or if, in such action, judgment for the plaintiff he arrested or reversed upon a ground which does not preclude a new action for the same cause, or the plaintiff shall proceed in the wrong form or bring the wrong form of action, and judgment be rendered against him solely upon that ground, a new action may be brought within one year after such reversal or judgment. In the first of said two Virginia cases a suit in equity had been brought and dismissed for want of jurisdiction and it was held that an action at law for the same cause of action thereafter commenced was not within the exception. In the second, the plaintiff had taken a non-suit, and thereafter instituted another action for the same injury, and it was held that that case was not within the exception to the statute of limitations.
The Tennessee statute reads as follows: "If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff and upon any ground not concluding his right of action, or where the judgment or decree is rendered against the plaintiff and is arrested or reversed on appeal, the plaintiff, or his representativs and privies, as the case may be, may from time to time commence a new action within one year after the reversal or arrest." The Supreme Court of Tennessee, in Sweet v. Electric Light Co., 97 Tenn. 252, held that a suit commenced in a court having no jurisdiction and dismissed for want thereof, was a nullity and that as, in such case, no action had been commenced within the the meaning of the statute, such proceeding did not prevent the running of the statute, nor bring the case within the exception. That is the contention of the plaintiff in error, this cause of action having been first set up in a court having no jurisdiction and there dismissed on that ground, and then sued on in the State court more than one year after the accrual of the right of action, but within one year after the dismissal of the proceedings in the federal court.
In Smith v. McNeal, 109 IT. S. 426, the Supreme Court of the United States construed the same Tennessee statute and arrived at conclusion seemingly in conflict with that announceed by the Tennessee court. Said case was decided in 1.887, and the Tennessee case of Sweet v. Electric Light Co. in 1898 and, strange to say, the Tennessee court did not even notice the former decision of a similar question upon the same statute by the Supreme Court of the United States. There is a distinction between the two cases, however. In Smith v. McNeal, the dismissal was for want of the allegation of a jurisdictional fact which actually existed and which, if alleged, would have given jurisdiction. In the Tennessee case, the former action had been brought in a court in which jurisdiction could not have been shown in the declaration. The construction given the statute in Siveet v. Electric Light Co. may be said to find some countenance in the opinion delivered by Mr. Justice Woods in Smith v. McNeal, where it is said: "Cases might be supposed, perhaps, where the want of jurisdiction in the court was so clear that the bringing of a suit therein would show such gross negligence and indifference as to cut the party off from the benefit of the saving statute, as if an action of ejectment should be brought in a court of admiralty, or a bill in equity should be filed before a justice of the peace.
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