Illinois Central R. R. v. Gheen

66 S.W. 639, 112 Ky. 695, 1902 Ky. LEXIS 212

Opinions

Opinion op the court by

JUDGE WHITE —

Reversing.

The appellee brought this action for damages for refusal to admit him into the hospital at Paducah after he had received an in]ury to his hand, a'nd, as is alleged, he was deprived of prompt and proper medical treatment, and by reason of the failure to have such proper treatment amputation . •of three Ungers of his hand became necessary. It is alleged that the hospital at Paducah is kept by appellant, under its supervision and control, and the cost of maintenance thereof is deducted from the wages of the- raiíroad employes according to a fixed scale, each employe contributing by the deduction and withholding of such part of the wages due him. Appellant, by answer, denied that it conducted or controlled the hospital, but alleged that it was a voluntary association, composed of the railroad employes of the division from Louisville to Memphis, and that tlhe appellant company only acted in a friendly way toward the insttitu» tion, and rendered friendly and gratuitous services,to it and the employes, in collecting and disbursing the funds ■necessary to maintain the hospital, and, further] that the «appellant furnished transportation to the Hospital for any employe entitled to treatment therein. Appellant denied all responsibility for the hospital management or liabilities. Further answering, the appellant denied that appellee waST entitled to admission to the hospital, or that he was injured or damaged by reason of not being admitted to the hospital earlier -than he was. It appears that appellee was finally, Admitted and treated, and it was in the hospital tlhait his fingers were amputated. There is no claim of liability of appellant by reason of the injury originally. That is expressly disclaimed in ■ the petition. The claim is for increased injury by reason of not being admitted to the hos pital for treatment in time to prevent the loss of the fingers and the suffering occasioned thereby.

Upon the issues presented the case was tried, and a verdict and judgment resulted in favor of appellee for $1,000. T,he case is here upon appeal from that judgment. The reasons and motion for new trial assign as error the action of the court in sustaining a demurrer to the plea to the jurisdiction of the Livingston circuit court, error in 'instructions given, and that the amount of the judgment is excessive.

The plea to the jurisdiction presents the fact that at the time the suit was brought appellant 'had a chief officer and agent residing in this State in Jefferson county, to-wit, a division superintendent.. It appears from the petition that appellee was employed and injured in Livingston county, and was refused a certificate entitling him to admission into the hospital by his foreman in Livingston county. The line of railroad runs through Livingston county. The hospital is in McCracken county. In our opinion, the Livingston circuit court held jurisdiction of the action. If wrong was done appellee at all, it was in Livingston county. His cause of action, if he had any, accrued wholly in that county.

The court on the trial gave three instructions, as follows:

“(1) The court says to the jury that if they believe from the evidence that plaintiff was employed and labored for the defendant, and while thus engaged he received an injury to his hand, then he has .the right to admission at once into said hospital for treatment; and if the jury further believe from the evidence that defendant, by its officers and agents governing said hospital, and that plaintiff was refused a certificate of admission-to said hospital, and if plaintiff suffered any additional pain or injury by reason thereof, then the law is for the plaintiff, and the jury will so find f¡0r him as in instruction No. 3.

“(2) If the jury believe from the evidence that said hospital was governed and controlled by the laborers of the defendant and not by the officers of defendant, or that plaintiff was not injured or damaged by reason of defendant’s agent in refusing him admission to said hospital, then, in either case, the jury will find for defendant.

“(3) The court says to the jury if, under the evidence and instructions, they find for plaintiff, they will find only such damages as will compensate -him for any additional pain and suffering endured by him, if any, from the time he made application for admission and the time he was admitted into said hospital; that is, the excess of pain and suffering, if any, that he endured.over that which he would have endured if he had been treated in the hospital, and for the loss of his fingers and power to earn money, and mental land physical suffering by reason thereof, provided the jury believe from the evidence that his fingers could and would have been saved if he had been permitted to enter said hospital when he first applied for admission; but in no event can the jury allow him more than two thousafnd dollars, the amount claimed in his petition.”

There were objections and exceptions to each of these instructions by appellant. It is earnestly insisted that these instructions are prejudicial to appellant, and are not correct statements of the law applicable to the case. The testimony as to the formation, conduct, and management of the hospital presents no material disagreement as to the facts. These appear to be that each employe on the Louisville & Memphis division, who is employed as much as four days in a month, contributes to the maintenance f and sup. port of the hospital. The sum payable is fixed by a scale, according to wages earned per month, and tihe amount payable is withheld by the paymaster of 'appellant out of the wages due the employe and turned into the hospital fund, which is held by the treasurer of appellant. The hospital association is not incorporated, nor, on the other hand, is it purely voluntary. If the fact that an employe has no option about paying out of his earnings the fixed assessment for the support of the hospital could' be termed a voluntary payment, then the. hospital association might be termed a, voluntary association. It has a board of directors, but these are such, save two, by reason of their official position with appellant’s road. The two exceptions are a conduct, or and engineer, who are selected by the other members. The surgeon in charge is practically appointed by the chief surgeon of appellant. The men who contribute the monthly assessment to pay the hospital expenses have in fact no voice in the management or control of the hospital, save and except that of giving certificates of admission thereto to subordiate employes when sick or injured. Employés of the class of appellee have no rights or powers in regard to the hospital, save that of paying the monthly assessments, which in fact they never see, and the right of treatment in case of injury or sickness. As to the ownership of the hospital grounds and buildings and ecpiipment, there is no proof. 'We are of opinion that these facts, proven without serious, if any, contradiction, would have authorized the court to instruct the jury peremptorily that, if appellee had been engaged more than four days, he was entitled to admission into the hospital, and. if he was refused permission to enter, or certificate entitling him to transportation and entrance to the hospital, and was injured by such refusal, he was entitled to recover. It is clear that if appellant corporation ceased to exist, or should attempt to withdraw from the hospital, the hospital would cease to be of any service. The appellant is the very life of the hospital as-' sociation. . Its funds, management, control, end service are all furnished by appellant. In fact, the hospital association is the Illinois Central Eailroad. In this view, instructions 1 and 2, given, are more favorable to appellant than it was entitled to have.

However, we are of opinion that instruction No. 3, as to the measure of damage or criterion of recovery, is error. The general and universal rule of law in regard to damages is that every person must do all that can reasonably be done to render the damage for any act or omission as light as possible. Under this rule, the appellee, when he was refused admission to the hospital, if such be the case, was bound to do all that he could to keep the consequent' injury, and damage as light as possible. To do so, he should have employed medical and surgical attention to cure ihis hand, or, at least, to arrest other or further injury. For such services and attention, or the cost thereof, the appellant, if liable at all, would be required to pay. This is the reasonable requirement of the law. That course ■ would be expected of any person, that he would use all means to prevent further injury to himself. 'By the proof herein appellee failed to do this, but contented himself to accept' thie services and treatment of the local surgeon of appellant, who seems to have pursued the same treatment given at the hospital. If that surgeon was unable for any reason to give appellee proper and necessary treatment to bis wounds, it was the duty of appellee to procure elsewhere such attention. Üf lie failed to do so, he can not charge appellant with the consequent loss, suffering or injury he received by his own failure to procure medical and surgical attention. But he can recover the reasonable cost of such medical and surgical attention that would have equaled the medical and surgical attention he would have received at the hospital if he had been admitted. Appellee was entitled, if at all, to the skilled surgical attention he'would halve received at the hospital of appellant, including board, transportation, and such accommodations and charges that the hospital would furnish its patients. If appellant refused to furnish such, and was bound to do so, the appellee could and should have sought such attention elsewhere, and for the reasonable cost thereof appellant would be liable. The science of medicine and surgery has..not so far advanced that it could be said as a certain faict that if appellee had been admitted into the hospital, and had received the very best attention there to be had, he would not have suffered pain and mental anxiety, and that, surely he would not h!ave lost his fingers. By the establishment of the' hospital, the appellant did not assume or undertake to cure disease, or in all cases relieve from injuries. The undertaking was to furnish medical aind surgical attention, and to nurse and care for the patient who is admitted therein. If appellant be liable under the proof, its liability is for failure to furnish these things, and the damage for such failure is the reasonable cost at which such care and attention, board and medical and surgical skill could have been obtained, as well as cost of transportation to the (nearest suitable place where such attention could be had.

For the reasons indicated, the judgment is reversed, and cause remanded for a new trial, and for further proceedings consistent herewith. Whole court sitting.

Petition for rehearing overruled, 24 R., 68.

June 13, 1002.