Opinion
No. 35296.
March 22, 1943.
1. PHYSICIANS AND SURGEONS.
In action by employee's child against physicians for breach of medical care contract entered into between physicians and employer, whereby any employee could avail of contract for himself and his family by notifying employer and agreeing to deduction from wages, whether employee had notified employer of desire to come under contract before child sustained accident so as to authorize recovery for breach notwithstanding employee's name was not on list submitted by employer to physicians was for jury.
2. ESTOPPEL.
An employee's child was not "estopped" to claim benefits of medical care contract entered into between physicians and employer for benefit of employees who would notify employer of desire to come under contract because employee paid a fee to one physician and negotiated with the other about hospital charges for the child, where employee informed physicians that while employee's name might not be on list submitted by employer it ought to be there because of employee's notification.
3. PHYSICIANS AND SURGEONS.
Physicians, who violated contract entered into with employer to provide medical care for employees and their families at half of regular charge, were liable to employee's child for at least nominal damage for breach of contract.
4. PHYSICIANS AND SURGEONS.
An employee's child was not precluded from recovering damages from physicians for breach of contract with employer which provided for medical care to employees and their families at half of regular charge, because child was taken to charity hospital and employees saved medical expenses, since child was entitled to damages for pain and suffering sustained by virtue of his being carried from physicians' sanitarium to charity hospital.
APPEAL from circuit court of Clarke county, HON. ARTHUR G. BUSBY, SR., Judge.
Jacobson, Snow Covington, of Meridian, for appellant.
We insist that:
First, both defendants were entitled to a directed verdict, plaintiff having failed to make out a case by his proof.
Second, that Dr. Klein had no notice that plaintiff had made any request to be placed on the doctor's list; that in truth and in fact Stonewall Cotton Mill had not placed M.D. Williams on the doctor's list; and that Stonewall Cotton Mill had not notified Dr. Klein that Williams was on the doctor's eligible list; while on the contrary Dr. Klein was informed by the note given him by M.D. Williams, and from Dr. Walker, that Williams was not on the eligible list.
Third, Stonewall Cotton Mill had not notified Dr. Walker he was on the doctor's eligible list, and was told by Williams himself that he was not on this list.
It is therefore inescapable that the court erred in failing to direct a verdict as to Dr. Klein and as to Dr. Walker.
Further, plaintiff proved no damages in this case, and if he was entitled to any damages, under any version of the case, he was only entitled to nominal damages. But the court awarded substantial damages.
This plaintiff was injured by a person for whom neither Stonewall Cotton Mills, Dr. Klein, nor Dr. Walker were responsible. He was carried to the clinic in Stonewall. Everything which would have been done for him if he had been on the doctor's eligible list was done for him by Dr. Walker while he was at Stonewall. When plaintiff reached Meridian Sanitarium, an x-ray was immediately made and he was made reasonably comfortable. It is true he suffered some pain for the ten to fifteen minutes required for him to be carried from Meridian Sanitarium to Matty Hersee Hospital, but he would have suffered pain if he had been kept at Meridian Sanitarium. He suffered pain both before and after he reached Meridian Sanitarium and before and after he reached Matty Hersee Hospital. The nature of his injury produced pain.
There was no complaint made by reason of the treatment accorded plaintiff at Matty Hersee Hospital. The result obtained was excellent. All admitted that plaintiff's recovery was complete and that everything which could have been done for him at Meridian Sanitarium was done for him at Matty Hersee Hospital. The truth of the business is, plaintiff saved the hospital bill which he would have necessarily had to pay Meridian Sanitarium, one-half the regular fee charged the general public, by going to Matty Hersee Hospital, where his treatment was free. He benefited to that extent.
We therefore contend that the overwhelming weight of the evidence was with defendants and that plaintiff failed to show any damage.
We could cite a long list of Mississippi cases supporting the theory that where the overwhelming weight of the evidence is with the defendant, a verdict should not be allowed; to the extent and to the effect that the testimony of an interested party must yield to that of uninterested parties, but these two propositions of law are so well established we will not burden the court by citing these many decisions. We simply refer to the case of White et al. v. McCoy (Miss.), 7 So.2d 886, and the many cases which the cited case follows.
W.F. Latham, of Quitman, for appellee.
Neither one of the defendants were entitled to a directed verdict because the plaintiff fully made out his case by proof.
Both Dr. Walker and Stonewall Cotton Mills had notice that M.D. Williams was placed on the doctor's list and they each well knew that Williams was on the eligible list of the doctors. The record shows that the Stonewall Cotton Mills office and Dr. Walker's office are only about 100 yards apart and that a telephone connected one with the other, and that Dr. Walker and Stonewall Cotton Mills were both notified to make deductions from the Williams' earnings; that deductions were made for the month of September, 1940, and that notice to the Stonewall Cotton Mills and notice to Dr. Walker were under the law notice to Dr. Klein. Dr. Klein was further informed by Mr. Williams that he had requested this deduction to be made when he was discussing this with Dr. Klein in his hospital in Meridian.
Therefore, the court did not err in failing to direct the verdict for Dr. Klein and Dr. Walker.
The plaintiff did prove damages in this case and the plaintiff was entitled to substantial damages for the reason that the evidence shows the plaintiff did suffer pain before the time he was carried to the office of Dr. Walker at Stonewall and that he was not administered anything on earth by Dr. Walker to relieve his sufferings and that Dr. Walker failed and refused to even splint the boy's leg which he was bound to do under his contract, but made a charge as if he were a private citizen, and further shows that the plaintiff was hauled in a car to the Meridian Sanitarium to Dr. Klein and that Dr. Klein failed and refused to administer any medical treatment to the plaintiff to relieve his suffering as he was bound to do under his contract. The plaintiff was then taken from Dr. Klein's hospital and again loaded in an automobile and hauled a considerable distance to the Mattie Hersee Hospital, which is a charity hospital, all of this time suffering pain as no one except the plaintiff himself knew and continued to suffer until he reached the clinic at the charity hospital. The doctors there remarked that the poor little fellow hadn't even had a hypodermic and a nurse under their directions gave the plaintiff a hypodermic to ease his pain. The plaintiff has certainly proved damages for his pain and suffering caused by the negligence of the defendants herein if nothing more.
Milton Williams, a minor ten years of age, by M.D. Williams, his father and next friend, sued Stonewall Cotton Mills and Doctors K.T. Klein and R.P. Walker for breach of a contract for medical care and recovered a judgment against Doctors Klein and Walker for $500, from which they appeal. The lower court, on motion made when plaintiff rested his case, excluded the testimony offered by plaintiff and directed a verdict for the Cotton Mills, but overruled the motion as to Doctors Klein and Walker. Williams did not appeal as to the Cotton Mill; therefore, the appellants are Doctors Klein and Walker.
The main contentions on this appeal are (1) that appellee had not brought himself within the benefits of the contract, but, if so, (2) he suffered no damage.
The medical contract was signed by the Cotton Mill and Doctor Klein. It was for the mutual benefit of the signers and the employees of the mill at Stonewall, Mississippi. Doctor Klein resides at Meridian, Mississippi, and there operates the Meridian Sanitarium. The employees, on availing themselves of the contract, became entitled without further charge, to medical services and advice of Doctor Klein and his associate and to hospitalization at the Meridian Sanitarium for one-half the regular charges. Doctor Klein also contracted to engage a competent doctor and nurse, subject to the approval of the Cotton Mill, to be stationed at Stonewall to serve eligible employees there. The Cotton Mill agreed to furnish quarters for the local doctor and nurse and to collect from the employees and remit to Doctor Klein the fees now to be stated. Any employee of the Mill could avail of this contract for himself and any or all members of his family by notifying the Cotton Mill of such desire and agreeing to a deduction from the wages of such employee of thirty cents per month per person. There are other provisions of the contract not necessary to be stated. Doctor Klein made an arrangement with Doctor Walker to act as the local doctor.
On September 7, 1940, appellee was struck by an automobile at Stonewall, causing a fracture of the thigh bone of his right leg. He was immediately carried to the office of Doctor Walker, who examined his injury and prepared and bandaged onto the leg a padded splint. Doctor Walker informed the father of appellee that Milton should be taken immediately to the Sanitarium at Meridian. This was done by automobile. Doctor Walker had in his office a card index system showing the names of employees on the doctor's list. Neither Milton nor his father appeared on the list in the doctor's office. He so informed the father. The father testified he told Doctor Walker he had given notice and they should be on the list. Doctor Walker made no further effort to ascertain whether appellee was entitled to be on the doctor's list. His office was about one hundred yards from that of the Cotton Mill. Doctor Walker wrote a note to Doctor Klein telling him appellee was not on the list. The father carried this note to Doctor Klein.
When the patient arrived at the Meridian Sanitarium X-Rays were made of his injury. Doctor Klein told the father what Doctor Walker had written. The father says he informed Doctor Klein that appellee should have been on the doctor's list. The father and Doctor Klein discussed what the charges would be if Milton remained at the Sanitarium. An amount was named and the father says he told Doctor Klein he thought he could pay it out of his weekly wages. There was then a discussion of the advisability, under the conditions, of taking the child to the Matty Hersee Charity Hospital in Meridian. Doctor Klein told the father he thought he could arrange it. This was done. Milton was then again placed in an automobile on pillows, his mother and father being in the car with him, and was carried from the Meridian Sanitarium to the Matty Hersee Charity Hospital. He remained in the hospital approximately three weeks and there is no dispute that he received very splendid treatment at the Charity Hospital and his recovery was most satisfactory. It should be added that Doctor Walker made a charge of $2 for his services and sometime later the father of appellee paid one-half of this amount, the other half being paid by the owner of the automobile which struck Milton, and who had also furnished the automobile for the trip to Meridian.
Dealing now with the first contention of appellants, the contract prescribes two conditions to become eligible for benefits thereunder, to-wit: The status of an employee of the Cotton Mill at Stonewall and notice by such employee to the Mill of his desire and willingness to avail of the benefits of this arrangement. No particular kind of notice is prescribed. M.D. Williams and his wife testified that he had informed the local nurse and Doctor Walker of his desire to come within the contract for himself and the other four members of his family, including Milton. The nurse and Doctor Walker deny that. M.D. Williams also testified that he had informed an employee in the office of the Cotton Mill to that effect. The employee did not deny definitely that Williams had given him such notice. No question is raised as to the authority of this employee to receive the notice. These notices, if given, were oral and prior to the accident. It appears that M.D. Williams had worked at this Mill a number of years, during which time he and the members of his family had been on the doctor's list, but he quit work in July, 1940. He began working again the latter part of August, 1940. It was the practice at the Mill, owing to the large number of employees, some twelve hundred to three thousand, to pay the employees about one week after the end of the week covered by such payment. It took that long to make up the payrolls. In other words, the wages due September 7th, the day Milton was injured, were not paid until September 13th. On that day M.D. Williams received his wages for his work which ended September 7th. The Mill had deducted $1.50 for the medical services under this contract, this being thirty cents per month for each member of his family. The representative of the Mill testified the deduction would not have been made had the notice not been received. It was made for the week prior to the accident. The method of notice by the Mill to Doctor Walker of those on the eligible list was a matter between them. It is not a question whether appellee was on the list but whether he had a right to be on it. And if notice had been given before the accident he had that right. This question was submitted to the jury under proper instructions and the jury found the notice had been given and appellee was eligible. We think there is sufficient evidence to support that finding.
Appellants say that by paying the $1.00 to Doctor Walker and negotiating with Doctor Klein about his hospital charges appellee is estopped to say he is eligible. We do not think so. Aside from whether the father by such negotiations could have estopped appellee, a minor, the father also testified that he informed Doctor Walker and Doctor Klein that, while his name might not be on the list, it ought to be there and that he had so requested.
On the question of damages, it follows from what we have said that the doctors violated the contract and appellee would be entitled to at least nominal damage. It is not claimed in the declaration that the contract required anything to be done for appellee other than was actually done for him to the time he left the Sanitarium. Instead of remaining at the Meridian Sanitarium he went to the Charity Hospital. Had he remained at the Meridian Sanitarium under the contract the father would have had to pay one-half the regular hospital charges. Nothing was paid to the Charity Hospital or for medical treatment there. It is claimed that appellee was benefited — that he saved the charges at the Meridian Sanitarium. This confuses, however, the obligations and rights of the father with those of the appellee. In addition to the nominal damages the only other damage which the minor himself suffered by the failure of Doctor Klein to take him into and treat him at the Meridian Sanitarium was the pain and suffering which appellee sustained by virtue of his being carried from the Sanitarium to the Charity Hospital over and above what he would have sustained had he been kept at the Meridian Sanitarium. This damage, if any, has not been ascertained and we can not determine it here. The question was not so limited on the trial below. The case is affirmed as to liability but reversed and remanded for assessment of damages only.
So ordered.