as to the one defendant dismissed, and as to miles or more from the doctor's office, and it the other remanded for new trial.

(105 S.E.)

possible. Finally, there was obtained for the Tom's Creek plant one elderly doctor, who was not able to visit points at a distance or at night, a medical student from the University of Virginia, and one trained nurse. These were the conditions at the time the decedent was sick. At that time there were between 500 and 600 cases of "influenza" at Tom's Creek, and at lease five or six cases of pneumonia.

word

[1] It is insisted by counsel for the defendant in error that the doctor was the agent of the company, and that "failure on the part of this agent to perform the services .contracted for by his principal is negligence and a breach of the contract for which the principal is liable." Apparently, the "agent" in the paragraph quoted is used in the generic sense of representative; but the representative may be what is usually and properly termed an agent, or he may be a servant. There is a well-defined distinction between the two. Usually an agent represents his principal in the formation or discharge of contracts with third persons, while a servant performs mere operative or mechanical acts under the direction and control of the master which may result in imposing a liability on the master on account of an existing obligation resting upon the master. The distinction between an agent and a servant is fully set out in Huffcut on Agency (2d Ed.) 4, where, amongst other things, it is said:

"An agent represents his principal in an act intended, or calculated to result in the creation of a voluntary primary obligation or undertaking. A servant represents his master in the performance of an operative or mechanical act of service not resulting in the creation of a voluntary primary obligation, but which may result, intentionally or inadvertently, in the breach of an existing one."

It is quite manifest that the doctor did not occupy the position of agent in this sense. It seems equally clear that he was not a servant of the company. A servant is bound to obey the uncontrolled will and directions of the master in all its details, and in the means and methods to be used by the servant in the performance of his work. The doctor was not employed to do ordinary operative or mechanical acts, but to render professional services requiring special education and training, and involving the exercise of skill and judgment, which could not, in the nature of things, be controlled by the will and direction of the company.

As said in Quinn v. Railroad Co., 94 Tenn. 713, 30 S. W. 1036, 28 L. R. A. 552, 45 Am. St. Rep. 767:

geons, but it was as well a duty that the law imposed. If the railroad authorities had undertaken to direct them as to the method of treatment of the injured man, and this method was been 'bound to exercise their own superior skill regarded by them as unwise, they would have and better judgment and to disobey their employers, if in their opinion the welfare of the patient required it.' Union Pac R. Co. v. Artist, 60 Fed. 365."

The doctrine of respondeat superior has no Neil v. Flynn Lumapplication to the case. ber Co., 71 W. Va. 708, 77 S. E. 324, 325, 93 Am. St. Rep. 657. The position of the doctor was rather that of an independent contractor. But this would not excuse the company from

liability for his acts or neglects if the company was under a contractual obligation not merely to employ a competent physician, but to furnish the employee skillful medical treat

ment in case of sickness.

"If the employer by express contract has agreed to do an act efficiently and safely, he cannot, by subletting the work to an independent contractor, relieve himself from liability under his express contract." Huffcut on Agency (2d Ed.) § 223; 76 Am. St. Rep. 408.

and cases cited.

In the absence of contract the master is under no obligation to provide medical attendance for his sick servant. It becomes necessary, therefore, for us to inquire what was the contract between the parties.

[2] As there was no express contract, oral or written, we are compelled to ascertain the terms of the contract as best we may from the conduct and dealings of the parties with each other. The company owned and operated a number of mining plants. For some years it deducted monthly from the pay of the miners 50 cents a month for single men and $1 a month for each man with a family. A few years ago it erected and equipped a of the hospital, the deductions were 75 cents hospital for surgical cases. After the erection for men with families. On the statements a month for a single man and $1.25 a month marked "physician." The amount of these furnished the miners, the deductions are deductions went into the treasury of the company, which employed the physician. The how the accounts were kept and the money vice president of the company testifies as to expended, and states that no profit has ever been made by the company out of this account since he has been connected with the company as the vice president, and there is no evidence of any profit to the company from In the abthat account at any other time. sence of an express contract, the plaintiff examined a number of miners to ascertain their understanding as to what they were to receive in return for the deductions from their wages. Their answers to this question

"To perform these services so as to make them effectual for the saving of life or limb, it was necessary that these surgeons should bring to their work, not only their best skill, but the right to exercise it in accordance with their soundest judgment and without interfer

were:

"If he was sick or hurt the doctor was sup

1. What constitutes a charity hospital and the extent of its liability to a patient therein for the negligence or malpractice of one of its physicians, or surgeons, was fully considered by this court in the able opinion of its president, Judge Keith, in Hospital of St. Vincent v. Thompson, 116 Va. 101, 81 S. E. 13,

Another witness was asked, and answered 51 L. R. A. (N. S.) 1025. It was there held as follows:

that the immunity of the hospital from liatract on the part of the patient to assume the bility to a patient rested on an implied con

“During all that time has it or not been your understanding that you were to receive visits and treatment from the doctor in case you need-risk. We are satisfied with the conclusions ed such for that deduction? Yes, that was my understanding."

Another witness states:

"I expected the services of a physician when I needed him."

A number of other witnesses testified to the same effect, but none of the answers is any more specific than those given. On all previous occasions the "company doctor" had always responded to all calls made upon him by the miners. From the testimony, the plaintiff deduces a contract on the part of the company to provide medical treatment to the decedent at all events when he was sick and argues that the failure of the doctor to visit him was the failure of the company to fulfill its contractual obligation for which it must respond in damages. The company, on the other hand, claims that it was under no obligation to do more than provide a com· petent physician to attend the miners and keep him at the plant available to their calls, and that it did this, and if the physician negligently failed to answer the calls made upon him by the plaintiff's intestate, without notice or information to it of such neglect, there is no liability upon the company.

there reached, though it is conceded in the opinion that much of its discussion is obiter. The instant case, however, is not within that class.

2. Neither the owners nor the master of the steamship are liable for the negligence or malpractice of the ship's doctors resulting in damages to a passenger, provided due care was observed in the selection and retention of the doctor. The reason is that—

whether or not they employ the physician. "It is optional entirely with the passengers They may use his medicines or not as they choose. They may place themselves under his care, or go without attendance, as they prefer, and they determine themselves how far and to what extent they will submit to his control and treatment. The captain of the ship cannot interfere. The physician is not the shipowner's servant, doing his work and subject to his direction. In his department, in the care and attendance of the sick passengers, he is independent of all superior authority except that of his patient, and the captain of the ship has no power to interfere except at the passenger's request." Allan v. State Steamship Co., 132 N. Y. 91, 30 N. E. 482, 15 L. R. A. 166, 28 Am. St. Rep. 556; Laubheim v. Steamship Co., 107 N. Y. 229, 13 N. E. 781, 1 Am. St. Rep. 815; O'Brien v. Cunard Steamship

Co., 154 Mass. 272, 28 N. E. 266, 13 L. R. A.

329.

The same principle applies where the same option exists. Thus, in Pittsburg, etc., R. Co. v. Sullivan, 141 Ind. 83, 40 N. E. 138, 27 L. R. A. 840, 50 Am. St. Rep. 313, it was held that the company having assumed the duty to provide a physician and tender his services to

If, as the plaintiff claims, there was a personal undertaking on the part of the company "to treat”—that is, "to furnish competent and skillful medical treatment for" the decedent and there was a breach of the undertaking, the company cannot shelter itself under the doctrine of "independent contractor," and must respond in damages, unless some sufficient excuse for nonperformance its sick or injured employees, which they is shown; but, if the contract was as claimed by the company, there can be no recovery against it, as it is not claimed that the physician employed by the company was incompetent. The plaintiff rests his case on the ground that the physician employed by the company negligently failed to respond to the calls upon him by decedent for medical treatment, and that for this negligence the company is liable under its contract.

There have been many decisions involving questions more or less similar to those in the instant case, and while it would not be practical to review them all, a classification, or a partial classification, of them will serve to show the questions which have arisen and the

were free to reject or accept-a duty which was voluntarily assumed, and one which was not due from the company to its employeesits liability cannot be extended beyond its negligence, if any, in the selection of the physician or surgeon; that it was not liable for the negligence or tortious acts of the physician in the treatment of its servants who had accepted his professional services. This is really not a separate class, but an illustration of the next succeeding class, and is only given a separate classification because of its distinctive character.

3. If the services of a physician are furnished as a pure gratuity, the master paying the physician and simply offering his services,

(105 S.E.)

mistakes of the physician, if ordinary care has been used in his selection and retention. Quinn v. Railroad Co., 94 Tenn. 713, 30 S. W. 1036, 28 L. R. A. 552, 45 Am. St. Rep. 767; Pittsburg, etc., R. Co. v. Sullivan, supra; Louisville, etc., R. Co. v. Foard, 104 Ky. 456, 47 S. W. 342; Secord v. St. Paul, etc., R. Co. (U. S. Cir. Ct. Minn.) 18 Fed. 221; Railroad Co. v. Artist, 9 C. C. A. 14, 60 Fed. 365, 23 L R. A. 581.

4. Where a "relief fund" is created by deductions from the wages of employees and contributions are made by the master to provide medical attention and for disability and death benefits of its members, but membership is optional with employees, and the master agrees to make up all deficiencies necessary to the maintenance of the fund, and in consideration thereof, the members agree that the master is not to be liable to actions for damages for their injury or death while employed by the master, the master is not liable for the negligence or malpractice of the doctor, though chosen by him and subject to discharge by him, if he used ordinary care in the selection and retention of the doctor. This is said to be a business transaction, in the nature of a benefit society. Maine v. Chicago, etc., R. Co. (1897) 109 Iowa, 260, 70 N. W. 630, SO N. W. 315; Haggerty v. St. Louis, etc., R. Co. (1903) 100 Mo. App. 424, 74 S. W. 456.

"There is no evidence that the company derived or expected any advantage or profit from the fund so created." (Italics supplied.)

6. There are many cases where the whole fund is not turned over to the physician, but the fund is administered by the master for the benefit of his servants, with no direct pecuniary profit or the expectation thereof to the master; for example, there may be a hospital to maintain. Here the master is only liable for ordinary care in the selection and retention of the physician. Thus in Poling v. San Antonio R. Co. (1903) 32 Tex. Civ. App. 487, 75 S. W. 69, where a servant lost the sight of an eye by the alleged negligent treatment of the physician employed by the company, it was held that where a railroad company retained a certain sum monthly from the wages of its employees as a hospital fee, to be used in the care and treatment of its servants who were injured or became sick while in its service, but derived no profit from the fund, it was only required to use ordinary care in the selection of the physician, and was not liable for his malpractice; and in the well-considered case of Arkansas, etc., R. Co. v. Pearson (1911) 98 Ark. 399, 135 S. W. 917, 34 L. R. A. (N. S.) 317, it was held that where the company derived no profit or gain, nor the hope thereof from the monthly deductions made for hospital fees, the com5. If deductions are made from the wages pany was a mere trustee to administer the of the employee, and the whole fund is turn- hospital fund and was not liable for the neged over to the physician for his services in ligence or malpractice of a physician employfurnishing medical and surgical attention to ed by it if due care was used in his selection. the employee and his family-the master | A number of cases are cited to support the simply collecting and paying over the fund, opinion, including Big Stone Gap I. Co. v. and neither receiving nor expecting any prof- Ketron, supra, and the case is reaffirmed in it therefrom, though employing the physician St. Louis, etc., R. Co. v. Taylor (1914) 113 and having the right to discharge him-the Ark. 445, 168 S. W. 564. master is not liable for the negligence, mistakes, or malpractice of the physician, if ordinary care was observed in his selection and retention. Guy v. Lanark Fuel Co., 72 W. Va. 728, 79 S. E. 941, 48 L. R. A. (N. S.) 536; Eastman Gardiner Co. v. Permenter, 111 Miss. 813, 72 South. 234; Wells v. FerryBaker L. Co., 57 Wash. 658, 107 Pac. 869, 29 L. R. A. (N. S.) 426; Simon v. Hamilton L. Co., 76 Wash. 370, 136 Pac. 361; Engirbritv. Tristate Cedar Co. (1916) 91 Wash. 279, 157 Pac. 677; Arkansas, etc., R. Co. v. Pearson (1911) 98 Ark. 399, 135 S. W. 917, 34 L. R. A. (N. S.) 317. The cases cited generally state that there is no liability on the master, under the conditions stated, if he "derived no profit" from the transaction, but in the last-mentioned case it is said that the rule might be different if the company did in fact realize a profit therefrom, or "if it agreed and contracted with such employees, in consideration of the fees paid by them to furnish proper medical attention"; and in Big Stone Gap Iron Co. v. Ketron, 102 Va. 23, 26, 45 S. E. 740, 741 (102 Am. St. Rep. 839), in holding the company exempt, it was

In Congdon v. Louisiana Sawmill Co., 143 La. 209, 78 South. 470, the question was as to the sufficiency of the complaint to state a case against the defendant company. The plaintiff alleged in the complaint:

"That in this case, as was and had been customary with all employees of said company, the said company retained out of petitioner's wages a certain sum of money for the specific purpose of insuring medical aid and treatment for petitioner whenever it became necessary and expedient for him to have the same."

The fund thus established was to be "used solely and exclusively by the company with which to employ a physician to look after the health of its employees," and that petitioner had nothing to do with the employment of the physician or fixing his salary, and the fund was under the sole and exclusive management and control of the company and the physician so employed by it was alone responsible to said company. There was a demurrer to the petition on the ground that it did not state a case. This demurrer was sustained, the court saying:

"The plaintiff does not allege that the defend

of the physician employed by it, or out of the [geon to attend them and their families, as their fund created for the purpose of paying the phy-needs required. There is no evidence that the sician's salary. He does not allege that the company derived, or expected, any advantage or defendant failed to exercise ordinary care in its profit from the fund so created. In the selecselection of a physician to treat injured and sick tion of the surgeon it was the duty of the comemployees. He does not even allege that Dr. pany to exercise reasonable care, and the preBroadway, the physician selected by defendant, sumption is that this duty was performed, in was an incompetent physician. These were the absence of evidence to the contrary. There necessary allegations to show cause of action by is no evidence in the record with respect to the him against defendant." fitness of Dr. Johnson, except the testimony with respect to his treatment of the injury sustained by the defendant in error.

It is further said:

"Under the decisions, the employer can be made to respond in damages in such a case only in the event that he fails to exercise ordinary care in the selection of the physician, or in the event that he derives a pecuniary profit out of the fund."

"To hold the company liable for the incapacity of the surgeon, it was necessary to aver and prove: (1) That it was guilty of negligence in selecting an unfit surgeon; or (2) if reasonable care was exercised in the selection of the surgeon who afterwards proved incompetent, notice of his incompetency by reason of inherent

Further, in the course of the opinion, it unfitness, or by previous specific acts of negliis said:

"We might refer to a long line of decisions holding that, 'where a master employs a surgeon for the benefit of its men and without profit to itself, it is not liable for the surgeon's malpractice in case it exercises reasonable care in the selection of a competent surgeon.'"

gence, from which incompetency might be inferred; or (3) either actual notice to the master of such unfitness or bad habits, or constructive notice by showing that the master could have known the facts, had he used ordinary care and oversight and supervision, or by proving general reputation of the surgeon for incompetency or negligence; and (4) that the injury complained of resulted from the incompetency proved. "The mere fact of the incompetency of a servant for the work upon which he was employed is not enough to warrant a jury in findIn 5 Labatt's M. & S. (2d Ed.) § 2005, it is ing the master guilty of negligence in employsaid that

For this latter proposition a large number of cases are cited, many of which are also cited and reviewed in this opinion.

"The master may make deductions from the wages of his servants, and, without any direct pecuniary profit from the fund thus created, administer it for the benefit of those who fall sick or sustain injury while in his employment. The decided preponderance of authority is in favor of the doctrine that, under an arrangement of this character, he is not accountable for the negligence or unskillfulness of the physicians or surgeons employed by him, unless he has failed to exercise due care in selecting them."

ing him. *
Evidence of only one other
negligent act of the servant in fault is not usu-
ally sufficient. *
Shearman & Redfield
Myers v. Falk, 99 Va.

on Negligence, § 192;
385, 38 S. E. 178."

In the Ketron Case, the facts do not appear in the opinion except to the extent that they are given in the foregoing quotation, but an examination of the original record in the case discloses the fact that there, as here, there was no express contract between the parties. The whole contract was gathered from the In 21 R. C. L. § 40, p. 396, it is said, among following questions put to Ketron and his another things:

"But where one is under a contractual or statutory duty to furnish to another medical or surgical aid, the authorities are unanimous in support of the conclusion that, if he acts in good faith and with reasonable care in the selection of the physician or surgeon, and has no knowledge of incompetency or lack of skill or want of ability on the part of the person employed, but selects an authorized physician in good standing in his profession, he has filled the full measure of his contractual or statutory duty and cannot be held liable for any want of skill on the part of the person employed. In such case it seems that the duty would be fulfilled by furnishing to the patient an independent contractor, and that the physician will be

held to be such."

swers thereto :

"Q. State whether or not you paid this Big Stone Gap Iron Company anything for medical and surgical aid and attention. Tell what arrangement, if any, you had with that company about that? A. The arrangement was that I had to let a dollar go out of each month's wages. Q. That was to go for the payment of the physician and surgeon? A. Yes, sir."

The action there was for negligence of the doctor in improperly setting the plaintiff's leg, but the company was held not liable as there was no evidence of the want of due care in the selection and retention of the physician employed by the company. The principle upon which the company in that case was held not liable for the malpractice

In Big Stone Gap Iron Co. v. Ketron, supra, of the surgeon would seem to apply to the it is said:

case at bar.

7. It is generally, but not universally, held "It appears that each married employee was required, as we have said, to pay $1 a month that the incidental benefit derived by the masout of his wages, and each unmarried employee ter from the increased efficiency of the servthe sum of 50 cents a month out of his wages, ice is not a profit as will render the master