Va. Iron v. Odle's Adm'r

• Citation: 105 S.E. 107
• Court: Supreme Court of Virginia
• Decision Date: 16 September 1920
• Parties: VIRGINIA IRON, COAL & COKE CO. et al. v. ODLE'S ADM'R.

105 S.E. 107

VIRGINIA IRON, COAL & COKE CO. et al.

v.ODLE'S ADM'R.

Supreme Court of Appeals of Virginia.

Sept. 16, 1920.

Error to Circuit Court, Wise County.

Action by James A. Odle's administrator against the Virginia Iron, Coal & Coke Company and another. Judgment for plaintiff, and defendants bring error. Reversed, andas to the one defendant dismissed, and as to the other remanded for new trial.

Lewis A. Nuckols, of Roanoke, and Fulton & Vicars, of Wise, for plaintiffs in error.

Werth & Werth, of Tazewell, for defendant in error.

BURKS, J. The plaintiff's intestate was employed by the Virginia Iron, Coal & Coke Company to work in its mines in Wise county. While so employed he was taken sick and died. This action was brought against the company and the doctor employed by it to attend the miners, on the ground that the doctor had negligently failed to render the necessary medical attention to the decedent, and that such negligence caused or proximately contributed to decedent's death. There was a verdict and judgment for the plaintiff for $5,000, and to that judgment the writ of error in this cause was awarded.

There was no express contract between the parties, written or oral, and there is some conflict in the testimony as to what was done or omitted by the doctor, but we think the decided weight of the testimony, so far as it affects this case, shows that the decedent, James A. Odle, was in the employment of the company at the time of his death, and had been for upwards of 20 years; that during all this time the company had employed one or more doctors to attend the miners in case of injury or sickness; that there was deducted from the earnings of each miner, including the decedent, each month a small sum, which went into the treasury of the company; and that in consideration thereof the miner, in case of sickness, was entitled to receive medical attention and treatment, and also all necessary medicine, free of any additional charge. The money thus deducted each month went into the treasury of the company, without accountability to the miners, and the miners had no voice in the selection or discharge of the doctor. The company undertook to employ a competent doctor, or doctors, and the miners had attendance and treatment from him or them whenever and as often as in need thereof. James A. Odle, the plaintiff's intestate, was taken sick on Sunday, October 13, 1918, and died Thursday, October 24, 1918. He sent for Dr. D. A. Dunkley, the "company doctor, " on Monday, October 14, and each day that week. The messenger stated the symptoms of the intestate and the doctor sent him medicine on Monday and gave directions as to treatment. The messenger reported from day to day that the patient was no better, and asked him to go to see the patient who was very sick; but the doctor did not go, though on another day he again sent medicine. On each occasion on which he was urged to go to see the patient, the doctor explained that he could not get off on account of the great amount of sickness in the camp, and that he "had more work to do than he could do." The decedent lived five miles or more from the doctor's office, and it would have required the greater part of the half of a day to have made the trip. Finally, the doctor did go on Sunday, October 20th, examined the patient carefully, found that he had bronchial pneumonia, which is double pneumonia, and prescribed for him. He made no other visit to him, though requested to do so, and the patient died on the following Thursday, October 24th. The doctor testifies that he did not go to see him again after Sunday simply because he had so many patients at the camp he could not look after all of them, and that several of them were just as sick as Mr. Odle, and that he had done everything for the latter he could do. Dr. Pierce testified on behalf of the plaintiff that he saw the intestate on the morning of the day he died, and that "he was dying with yellow jaundice"; but there is other evidence in the record to the effect that the decedent had "influenza, " which was followed by pneumonia, resulting in his death.

The company had a large number of employees and usually employed one physician and an assistant at the Tom's Creek plant, where decedent was employed; but, when war was declared with Germany in 1917, young doctors were drafted and an appeal was made to those not within the draft to volunteer. Appeal was also made to the patriotism of the mining and manufacturing companies to reduce their medical staffs to the minimum of necessity. Under these circumstances, Dr. Carr, who was the assistant at Tom's Creek, was drafted and left the company and entered the military service of the United States. The company was operating several plants near to each other, and it was thought that, under normal conditions, they could be adequately cared for by rendering each other assistance when needed, and this arrangement was made. But in the early fall an epidemic of what was termed "influenza" spread over the country, producing an unprecedented amount of sickness, and a very large number of cases of pneumonia and death. The testimony in the record shows that in the Tom's Creek plant there were 3, 000 cases of "influenza, " many cases of pneumonia, and 47 deaths. The record shows that, as soon as the disease made its appearance at Tom's Creek, every reasonable effort was made to get medical assistance, with but poor success.

The same necessity which called for such assistance at Tom's Creek called for it all over the country, and rendered the demand for doctors far in excess of the supply. Appeals were made to the Surgeon General of the United States, to the State Board of Health, to the members of Congress from that district, and to private sources, and when the appeal to the Surgeon General proved unavailing the matter was taken up with the Fuel Administration, which was urging the production of the greatest amount of coalpossible. Finally, there was obtained for the Tom's Creek plant one elderly doctor, who was not able to visit points at a distance or at night, a medical student from the University of Virginia, and one trained nurse. These were the conditions at the time the decedent was sick. At that time there were between 500 and 600 cases of "influenza" at Tom's Creek, and at lease five or six cases of pneumonia.

It is insisted by counsel for the defendant in error that the doctor was the agent of the company, and that "failure on the parr of this agent to perform the services contracted for by his principal is negligence and a breach of the contract for which the principal is liable." Apparently, the word "agent" in the paragraph quoted is used in the generic sense of representative; but the representative may be what is usually and properly termed an agent, or he may be a servant. There is a well-defined distinction between the two. Usually an agent represents his principal in the formation or discharge of contracts with third persons, while a servant performs mere operative or mechanical acts under the direction and control of the master which may result in imposing a liability on the master on account of an existing obligation resting upon the master. The distinction between an agent and a servant is fully set out in Huffcut on Agency (2d Ed.) § 4, where, amongst other things, it is said:

"An agent represents his principal in an act intended, or calculated to result in the creation of a voluntary primary obligation or undertaking. A servant represents his master in the performance of an operative or mechanical act of service not resulting in the creation of a voluntary primary obligation, but which may result, intentionally or inadvertently, in the breach of an existing one."

It is quite manifest that the doctor did not occupy the position of agent in this sense. It seems equally clear that he was not a servant of the company. A servant is bound to obey the uncontrolled will and directions of the master in all its details; and in the means and methods to be used by the servant in the performance of his work. The doctor was not employed to do ordinary operative or mechanical acts, but to render professional services requiring special education and training, and involving the exercise of skill and judgment, which could not, in the nature of things, be controlled by the will and direction of the company. As said in Quinn v. Railroad Co., 94 Tenn. 713, 30 S. W. 1036, 28 L. R. A. 552, 45 Am. St. Rep. 767:

"To perform these services so as to make them effectual for the saving of life or limb, it was necessary that these surgeons should bring to their work, not only their best skill, but the right to exercise it in accordance with their soundest judgment and without interference. Not only was this the right of these sur geons, but it was as well a duty that the law imposed. If the railroad authorities had undertaken to direct them as to the method of treatment of the injured man, and this method was regarded by them as unwise, they would have been 'bound to exercise their own superior skill and better judgment and to disobey their employers, if in their opinion the welfare of the patient required it.' Union Pac. R. Co. v. Artist, 60 Fed. 365."

The doctrine of respondeat superior has no application to the case. Neil v. Flynn Lumber Co., 71 W. Va. 708, 77 S. E. 324, 325, 93 Am. St. Rep. 657. The position of the doctor was rather that of an independent contractor. But this would not excuse the company from liability for his acts or neglects if the company was under a contractual obligation not merely to employ a competent physician, but to furnish the employee skillful medical treatment in case of sickness.

"If the employer by express contract has agreed to do an act efficiently and safely, he cannot, by subletting the work to an independent contractor, relieve himself from liability under his express contract." Huffcut on Agency (2d Ed.) § 223; 76 Am. St. Rep. 408, and cases cite...