Crawford v. Davis, Director General

The opinion of the Court was delivered by Mr. Acting Justice C. J. Ramage. This is an action by plaintiff against Davis, as Director General. The complaint and charge of the' Presiding Judge will be set out in full in the report *104 of the case. The answer is 'a general denial. Plaintiff’s testimony was to the effect that he was working as a section hand on the track and roadbed owned by Southern Railway Company on September 24, 1919; that a cross-tie fell on the leg of plaintiff and that he was bruised and injured to such an extent that it was necessary to send plaintiff to a physician; Legrand the section boss sent him to Dr. Tom Crawford, who told plaintiff that he could not lance plaintiff’s leg, unless he got a note from Mr. Legrand; Legrand gave plaintiff this note, and then Dr. Crawford treated plaintiff; after a lapse of some time as plaintiff got worse, he was sent to the hospital and his leg was in a badly infected condition and pus had burrowed up from the ankle to near the knee cap. Plaintiff claims that he had much suffering and sustained a permanent injury by reason of the treatment of Dr. Crawford, who was incompetent to give this treatment, and that Dr. Crawford’s unfitness and incompetency was known to defendant at the time he put plaintiff under the treatment of the said Dr. Crawford. “Whatever the liability of a physician or surgeon who may be selected by an employer to treat professionally an injured employee, the employer may not be held liable for malpractice of the person selected, unless it can be shown that there was negligence in the selection of the particular individual. So where a corporation undertakes to furnish medical or surgical treatment to employees, it discharges the full measure of its duty when it procures a surgeon or physician of reasonable skill and good reputation in his profession and is not liable for his negligence. But if the employer for his own purposes and ends secures the attendance of a physician, the rule is otherwise.” 18 R. C. L.,p. 603, § 103. “Where, though not under an obligation to do so, the master undertakes the relief of an injured or incapacitated .servant, he is bound to act with reasonable care so that the *105 injury to the servant shall not be increased. So where the railroad employer undertakes to assume control and take charge of the injured emlpoyee, although under the conditions present at the time it might not have been under any duty to furinsh such medical aid or attention, it is bound to the same measure of duty and care as would exist in a case in which in the first instance it would have been under such a duty.” 39 Corpus Juris, p. 244, § 355. “Where * * * the master undertakes gratuitously to furnish medical attention to an employee, he Is bound to exercise reasonable care in the selection of a competent physician and in continuing him in his employ, but he is not, according to the weight of authority, liable for the physician’s negligence or lack of skill, although there is some authority to the contrary; and it has been held that, where an employer maintains a safety and health department in charge of which he places a graduate nurse and direct his employees to go to her for treatment in case of injury, it is liable for her negligence. * * * Where a physician is employed by the master, but the relation of physician and patient does not exist between him and the servant, the rule of respondeat superior applies and the master may be liable for his negligence. In any event, in order to hold the employer liable for the negligent treatment of the employee, such negligence must be established and the complaint must positively and directly allege the facts imposing liability.” 39 Corpus Juris, pp. 244, 245, § 356. The doctrine that a master has discharged his duty when he selects a reasonably competent physician seems to be sustained by the following cases from our own Courts: Owens v. Atlantic Coast Lumber Corporation, 108 S. C., 266; 94 S. E., 15. Easler v. Railway, 100 S. C., 96; 84 S. E., 417, L. R. A. 1915-D, 883, and Hardin v. Railway, 128 S. C, 216; 122 S. E., 582. *106 In Mondou v. N. Y., N. H., etc., Ry., 223 U. S., 1; 32 S. Ct., 169; 56 L. Ed., 327; 38 L. R. A. (N. S.), 44, it was held that the State Courts can apply the Federal Employers’ Liability Act (U. S. Comp. St., §§ 8657-8665), as well as the Federal Courts. In speaking of this act, 39 Corpus Juris, p, 266, § 385, says: “However, the act is broad enough to cover any negligence-for which a common carrier engaged in interstate commerce can be responsible to its employees therein.” “To render the act applicable, the particular service in which the employee is engaged must be a part of interstate commerce.” Erie Ry. Co., v. Jacobus, 221 F., 335; 137 C. C. A., 151. “The purpose of the Act is to grant additional rights to servants and to remove existing defenses by the master in actions for injured servants.” Hulac v. Chicago & N. W. Ry. Co. (D. C.), 194 F., 747. “This Act held to cover every act of negligence for which a carrier might be liable to its employees engaged in interstate commerce.” De Atley v. Ches. & O. Ry. (D. C.), 201 F., 591. “The Act covers injuries occurring at the moment when the particular service performed is a part of interstate commerce.” Corbett v. Boston & M. Ry. Co., 219 Mass., 351; 107 N. E., 60; 12 A. L. R., 683. “The purpose of the Act is not to abridge but to enlarge the liability of interstate carriers. * * * ” Grow v. Oregon, etc., Ry. Co., 44 Utah, 160; 138 P., 398, Ann. Cas., 1915-B, 481. “The Act held to apply to every person whom Congress could include.” Horton v. Oregon, etc., R. Co., 72 Wash., 503; 130 P., 897; 47 L. R. A. (N. S.), 8. The decisions hold that, where a laborer is at work repairing a track over which interstate trains pass, he is engaged *107 in interstate commerce, and yet the next job may affect only intrastate matters; in other words, the case can be shifted from interstate to intrastate commerce in an incredibly short time, and the character of the act at the moment determines the question. We fail to see where the act of the defendant in choosing Dr. Crawford,had any of the elements of interstate commerce in it. That act is what the complaint is based on and we must be governed by the allegations contained in the pleadings. It was a purely intrastate matter. It was in testimony that Dr. Crawford said, “I am going to send in your claim for your accident”; that he pulled out two papers. The complaint charges that defendant retained Dr. Crawford as a surgeon and put this plaintiff under his care and treatment. Degrand testified that at the time he was employed by the defendant; that plaintiff was working for defendant at the time of the injury; that he sent plaintiff to Dr. Crawford; “that Dr. Crawford was the railroad doctor”; that Dr. Crawford had been a doctor for the railroad for a good many years. The following is taken from the testimony of Dr. R. H. Crawford (folio 151) : “Q. Your father, he was surgeon of the Southern Railway? A. Yes, sir; local surgeon. “Q. And retained the position up to the time of his death ? A. Yes, sir. “Q. And for the government also, under the Railroad Commission? A. Yes, sir; he was for the Southern Railway.” Dr. Fennel testified that the Director General paid him for the treatment in the hospital, and that Dr. Crawford sent plaintiff to his hospital. The exceptions’raise two questions: (1) In not directing *108 a verdict for the defendant; (2) in making the charge set out in the case or at least certain portions of it. 1. If Dr. Crawford was the agent of the defendant and. under certain phases of the law and evidence in this case he could be so held, then there could be no doubt as to the liability of the defendant in this case. However, we are going to apply the rule laid down in the citations above and in the charge of Judge Memminger that the defendant can only be held liable for negligence in selecting an incompetent physician. Now, as stated above, the theory of the case is that, when the master undertook to furnish gratuitously medical service, he was bound to exercise ordinary, care in the selection of the physician. Now, at the time the master undertook this task of supplying the physician is when this case begins and not before; his assumed duties, and obligation began when he sent the plaintiff to Dr. Crawford and from then on the entire transaction was intrastate and not interstate. Under the testimony in this case his Honor was clearly right in submitting the case to the jury. It tnay be stated further that, even if the case were under the Federal Employers’ Liability Act, the result would not be different; for, as stated in the citations supm, the Act is broad enough to cover any negligence for which a common carrier engaged in interstate commerce can be responsible to its employees therein. “The words ‘suffering injury’ a.re not confined to injuries which are attended with force or violence, etc.” Inhaling of paint mist from paint gun is sufficient to create liability under the Federal Employers’ Liability Act. Baltimore & O. R. Co., v. Branson, 128 Md., 678; 98 A., 225. 2. We do not think that his Honor erred in his charge. “In order to the maintenance of every civil action *109 for damages, two elements are essential and must concur. There must be, first, a technical violation of right, or an injury; there must be, second, resultant damages. To this rule actions for damages for personal injuries, constitute, of course, no exception. “* * * Damnum absque Injuria. Where there has been no violation of right the situation has been described as damnum absque injuria, in which circumstances recovery is not permitted, no matter to what extent the plaintiff may have sustained damages.” Watson on Damages for Personal Injuries, pp. 3, 4. “Injuria sine Damno. About the nearest approach to a true example of injuria sine damno is that class of cases where some damage must be shown to constitute a cause of action, as, for example, in action for negligence.” Id., p. 7. The defendant can only be held liable under the theory that said defendant, was negligent in the selection of the physician, who was incompetent, and that plaintiff was damaged by this negligence as a proximate cause; in other words, to use the words quoted by “Watson” there must be damnum plus injuria. This is necessary to bring liability home to the defendant. To quote part of the charge (folios 177, 178) : “Now it is claimed in this complaint that the Director General did assume to have a doctor to this man, and that he knew or should have known that the doctor in question was incompetent by reason of physical and mental deficiencies, etc., at the time, was incompetent to attend to this injury. That is what the plaintiff claims the Director General undertook, to furnish a doctor, could have ascertained that the doctor was not of sufficient capacity at the time to give the thing proper sort of attention, and that, therefore, he is liable for the damages resulting from such negligent and careless medical attention. And it appears *110 to the Court that those are the questions that you gentlemen have to decide.” Defendant states on page 18 of his Points and Authorities: “If, however, this Court should not sustain our contention as to a directed verdict, then we submit that, upon the errors pointed out in exceptions 7 and 8, a new trial should be granted. The parts of the charge excepted to are clearly erroneous as a matter of law and while his Honor did at one place instruct the jury that damages could not be found for negligence of the physician or surgeon, yet in other parts of the charge he stated that a verdict could be rendered for negligent or careless treatment. In the part quoted in exception 7, folio 197, he stated to the. jury: 'And if that medical attention is carelessly and negligently done, and his injuries result proximately from that negligence in carrying out the proper medical attention, why, of course, the employer is responsible for the conduct of the medical treatment.’ ” The often-stated rule is that all of the charge must be taken and construed together. The Judge told the jury in effect that the negligence of the physician could not be imputed to the defendant, unless he was negligent in selecting an incompetent physician to treat plaintiff, and in such case, defendant would be placed in a position to be held liable; in other words, no matter how negligent a master may be in the selection of a physician, yet if the servant was not as a matter of fact injured by the treatment, it would be a case of damnum absque injuria¡, or rather damnum sine injuria. But, on the other hand, if plaintiff was injured by the incompetent physician, then defendant’s negligence in selecting the physician would be the proximate cause of the damage and the physician’s negligence could be imputed to defendant. Just the same as if when the railroad fails *111 to give crossing signals and no one is hurt, there is no liability; but if some one is hurt by the failure to give these signals, and that person is not grossly negligent, then there would be a liability. This is what the Judge below conveyed to the jury: (1) That plaintiff could not recover unless he was injured by the physician’s negligence arid (2) unless the defendant was also negligent in the selection of an incompetent physician and that plaintiff must show all this by the greater weight of the testimony. As to the portion quoted above, to which defendant excepts, his Honor told the jury in other portions of the charge that this responsibility for the negligent medical attention would not be laid to defendant, unless defendant was also negligent in the selection of the said physician. It appears to us that a fair construction of the Judge’s charge as a whole will show that it stated the law applicable to the case in a fair and just manner. It is the judgment of this Court that the judgment below be affirmed. Messrs. Justices Watts, Cothran, BlEase and Stabler concur. Mr. Chief Justice Gary did not participate.