Wells v. Ferry-Baker Lumber Co.

• Decision Date: 25 March 1910
• Citation: 57 Wash. 658,107 P. 869
• Parties: WELLS v. FERRY-BAKER LUMBER CO.
• Court: Washington Supreme Court

107 P. 869

57 Wash. 658

WELLS v. FERRY-BAKER LUMBER CO.

Supreme Court of Washington

March 25, 1910

Department 1. Appeal from Superior Court, Snohomish County; W. W. Black Judge.

Action by R. H. Wells against the Ferry-Baker Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Shepard & Flett, for appellant.

Brownell & Coleman and Cooley & Horan, for respondent.

GOSE J.

On October 21, 1907, the appellant, the plaintiff below, while engaged in the discharge of his duties as a day watchman at the defendant's mill, fell from the conveyor onto a platform, a distance of about 10 feet, and sustained serious injuries. The complaint, after alleging formal matters, the employment, fall, and the injuries sustained, avers, in substance, that the defendant exacted and withheld from the wages of each of its employés, including the plaintiff, the sum of $1 per month, which it paid to a physician and surgeon of its selection for such professional services as he should render them; that as a result of the fall the bones of each forearm were broken; that the doctor selected by the respondent negligently treated the left arm for a sprain, and, as a result of the negligent diagnosis and treatment, it is deformed and it usefulness greatly impaired. The complaint also alleges that the doctor was incompetent as a surgeon, and that this fact was known to the defendant. At the close of the plaintiff's testimony, a judgment of dismissal was entered. The plaintiff has appealed.

The first and principal question to be determined is whether under the averments in the complaint and the testimony, there was any legal obligation resting upon the respondent other than to select a competent surgeon. While the incompetency of the surgeon selected by the respondent is alleged in the complaint, no testimony was offered to support it, and it will not receive further notice. The averment, when reduced to its simplest form, is that the sum of $1 per month was withheld from the wages of the appellant and other employés and paid to a physician or surgeon selected by the respondent, and that the negligence of the surgeon caused the injury complained of.

We think, under the decisions of this court, that the implied duty of the respondent was to select a competent physician and surgeon, and that when it did so it had discharged its full legal obligation. It is not claimed that there was any express contract between the company and the appellant, and the complaint expressly excludes the inference that any profit resulted to the respondent. It was, therefore, a noncompensated or gratuitous trustee, and is liable only for a failure to use reasonable care in the selection of a competent surgeon. In treating a similar case, in Richardson v. Carbon Hill Coal Co., 10 Wash. 648, 39 P. 95, this court said: 'The hospital was maintained and the physician provided for the sole purpose of relieving sick and injured employés without expense to them and without any intention on the part of the company of making any profit out of the undertaking. It was therefore a charitable institution, and it was supported by the contributions of employés, and carried on in their interests. And if the company did employ the physician, as claimed by the respondent, to look after and treat the sick and injured it is not liable for his negligence but is responsible only for want of ordinary care in selecting him.'

The appellant, however, insists that this rule was not adhered to in Sawdey v. Spokane Falls & Northern Ry. Co., 30 Wash. 349, 70 P. 972, 94 Am. St. Rep. 880. In the Sawdey Case the court adverts to the fact that the surplus in excess of the cost of treating the employés was retained by the company, and said: 'There is therefore in this case both the element of contract and profit.' In commenting on the Richardson Case, the court said that it was not authority for the broad proposition that an employer who maintains a hospital for a profit, or contracts for a consideration to treat its injured employés, is not liable for the negligence of the physician he employs notwithstanding he exercises reasonable care in the selection of a physician. Torn from its...