Thomas v. Tennessee Coal, Iron & R. R.

59 So. 627, 178 Ala. 580, 1912 Ala. LEXIS 400

• Court: Supreme Court of Alabama
• Decided: June 29, 1912
• Status: Published

Opinion

SOMERVILLE, J.

— According to plaintiff’s testimony, which does not seem to be in any way contradicted, defendant’s agent, Calloway, assured plaintiff, when he entered defendant’s service, that for the payment of $1 a month, “in case that you or any of your family gets sick, why, the company doctors will give you service.” It is not disputed that defendant had in its employ at that time, and at the time plaintiff became ill and required medical service, a practicing physician, Dr. W. S. Rountree, charged with the duty of giving needed medical service to its employees at its by-product plant at Wylam, where plaintiff was employed. It is true that Dr. Rountree’s contract with defendant was to serve employees and their families at their homes only within a restricted territory, and that plaintiff’s residence, where he was taken sick, and where Dr. Rountree was called upon to visit him, lay a mile or more outside of that territory. But it does not appear that plaintiff was informed of this restriction; and it is not denied that defendant deducted the stipulated fee of $1 a month from plaintiff’s wages as consideration for the medical service promised to him and his family.

It results that, while Dr. Rountree was not obligated to either plaintiff or defendant to render the service requested in this particular case, defendant was none the less obligated to plaintiff to have Dr. Rountree do so, at least the contract between them was fairly open to that interpretation by the jury, and fairly open to the interpretation, also, that in case of need the company’s physician should be summoned by a call made immediately upon him, and not mediately through some other company official. For if the company’s physician, provided for such an emergency as here arose, failed or refused to respond to plaintiff’s call, plaintiff was certainly under no duty to wait and take the matter up with the company for negotiation and adjustment, and, perhaps, die the meanwhile of inattention and neglect, as it seems he would very likely have done.

So far as defendant’s obligation to plaintiff is concerned, the limited service it required of its regular physician, the fact that that physician ivas under no duty to travel outside of a designated territory to serve plaintiff at his need, is ivholly immaterial to the case, in the absence of notice to plaintiff of such a restriction when he was contracting and paying for a service not thus limited. It. may, indeed, be reasonably presumed that for mere service at the plant or infirmary in case of injury he would not have chosen to pay the monthly fee; and, without informing plaintiff of the stated restriction, defendant had no right to take his money, and at the same time fail to provide for needed medical service to him at the hands of its regular physician.

This is the breach averred in the fifth count of the complaint, 'and there was evidence before the jury to support it. The breach charged is a breach by the defendant, not by Dr. Rountree; and the physician’s refusal to attend plaintiff was, in law, a failure by defendant to discharge its duty to plaintiff, viz., to arrange with its regular physician to attend him in sickness, and to actually effect such attendance by that antecedent provision.

The trial court erred,. therefore, in instructing the jury to find for defendant, and the judgment must be reversed therefor.

Reversed and remanded.

Dowdell, C. J., and McClellan and Sayre, JJ., concur. Simpson, Anderson, and Mayfield, JJ., dissent.