vision making an employer liable for the death of a person, caused by his negligence, or that of his servants or agents, refers to servants or agents engaged in some way in prosecuting his general business, and does not cover a case of death caused by negligence of the local surgeon in a pest camp maintained by him. These rules apply with equal force when an employer forms a relief department among his employees, employing a physician for their benefit;42 and an employer is not liable for the malpractice of physicians employed in hospitals maintained by him gratuitously, or by contributions from the employees for their benefit, when due care was used in their selection.*3 But in such case if the employer obligates himself in the contract of employment to furnish a competent and skilful physician, he is liable to employees injured by negligent treatment.**

So, where an employer exacts deductions from the wages of all employees alike, and binds himself to furnish medical treatment with the funds thus secured to such of the employees as should get hurt or become sick while working for the employer, and the moneys paid by the employees and reserved by the employer yield a profit above all expenses, which profit is secured by the employer, and not held as a trust fund for the employees, the law will imply an undertaking to give proper treatment, and the employer will be held to be responsible to an employee for improper treatment.45 And an employer main

him for the benefit of his employees, there must be evidence of want of reasonable care in his selection, or actual notice of unfitness, or performance of such acts of negligence as would have affected the master with notice had he exercised due oversight and supervision. Big Stone Gap Iron Co. v. Ketron (Va.) 9 Va. Law Reg. 906, 45 S. E. 740.

And the conscious and deliberate choice of an injured employee, while in possession of his mental faculties, of the time when, place where, and person by whom, he will be treated, relieves his employer of any liability for failure to provide for other treatment. Ohio & M. R. Co. v. Early, 141 Ind. 73, 28 L. R. A. 546, 40 N. E. 257.

"Missouri, K. & T. R. Co. v. Freeman (Tex.) 79 S. W. 9.

company from liability for negligence in causing the injury, is not a charity which will relieve the department from liability for negligence in selecting a physician to treat an injured member of the department. Ibid.

Union P. R. Co. v. Artist, 23 L. R. A. 581, 9 C. C. A. 14, 19 U. S. App. 612. 60 Fed. 365; Eighmy v. Union P. R. Co. 93 Iowa, 538, 27 L. R. A. 296, 61 N. W. 1056; Poling v. San Antonio & A. P. R. Co. (Tex. Civ. App.) 75 S. W. 69.

"Haggerty v. St. Louis, K. & N. W. R. Co. 100 Mo. App. 424, 74 S. W. 456; Sawdey v. Spokane Falls & N. R. Co. 30 Wash. 349, 94 Am. St. Rep. 880, 70 Pac. 972.

Te.cas & P. Coal Co. v. Connaughten, 20 Tex. Civ. App. 642, 50 S. W. 173.

The question whether an employer Haggerty v. St. Louis. K. & N. W. who deducted sums of money from its R. Co. 100 Mo. App. 424, 74 S. W. 456. employee's wages for the maintenance But a relief department of a railroad of a hospital for the treatment of incompany, supported by sums of money jured and sick employees undertook to deducted from the wages of the em- treat an employee gratuitously, and was ployees, which was to be enjoyed by them if they suffered from sickness or accident, on condition of relieving the

liable only for failure to use ordinary care in selecting the surgeon, or con tracted to properly treat him in coo

mistake as to fact raises no presumption of negligence.37 And it has been held that, in the absence of statutory provision therefor, there can be no civil action for damages against a physician, based upon the insufficiency of the methods which he pursued in reaching and certifying a conclusion required by law to be based on due inquiry and proper examination.3

38

505. Liability of master for malpractice of physician employed for servants. When a master sees fit to furnish medical attendance to his servants, the relation of master and servant does not exist between him and the physician or surgeon employed by him to render services to his employees, so as to render the master liable for malpractice of such physician or surgeon ;39 though negligence in employing a surgeon by an employer for an employee renders him liable for damages sustained through the surgeon's inefficiency. And a statutory pro

40

"Williams v. LeBar, 141 Pa. 149, 21 302, 57 N. E. 339; O'Brien v. Cunard Atl. 525.

"Pennell v. Cummings, 75 Me. 163. Within this rule, if physicians appointed under an act providing for the commitment of persons to a hospital on the certificate of two physicians, based on due inquiry and personal examination as to such person's sanity, have not made the inquiry and examination which the statute requires, or if their evidence and certificate in any respect of form or substance are not sufficient to justify a commitment, the municipal officers should not commit; and if they do, they are responsible therefor, and not the physician. Ibid.

And where, in an action against physicians issuing a certificate of insanity, it is claimed that the certificate was not only false, but false through malice or negligence, it is open to the defendants to prove precisely what were the circumstances under which they acted, what inquiry they made, and what the information was on which they proceeded. Ibid.

S. S. Co. 154 Mass. 272, 13 L. R. A. 329, 28 N. E. 266; Chicago, B. & Q. R. Co. v. Howard, 45 Neb. 570, 63 N. W. 872; Haggerty v. St. Louis, K. & N. W. R. Co. 100 Mo. App. 425, 74 S. W. 456; Richardson v. Carbon Hill Coal Co. 10 Wash. 648, 39 Pac. 95; Galveston, H. & S. A. R. Co. v. Scott, 18 Tex. Civ. App. 321, 44 S. W. 589; Southern P. Co. v. Mauldin, 19 Tex. Civ. App. 166, 46 S. W. 650; Union P. R. Co. v. Artist, 23 L. R. A. 581, 9 C. C. A. 14, 19 U. S. App. 612, 60 Fed. 365.

Liability of a railroad company for failure to provide for an injured brakeman is not incurred where the best mediical treatment that could be obtained at the little town where he was injured was procured, and he was removed as soon as possible, with his intelligent and conscious consent, without any objection of the physicians who had attended him, to another town where a place was provided for him, and competent surgeons were awaiting him; but he insisted on being taken still farther to the town where he lived, and he died soon after reaching home from loss of blood. Ohio & M. R. Co. v. Early, 141 Ind. 73, 28 L. R. A. 546, 40 N. E. 257.

Quinn v. Kansas City, M. & B. R. Co. 94 Tenn. 713, 28 L. R. A. 552, 45 Am. St. Rep. 767, 30 S. W. 1036; South Florida R. Co. v. Price, 32 Fla. 46, 13 So. 638; York v. Chicago, M. & St. P. R. Co. 98 Iowa, 544, 67 N. W. 574; Atchison, T. & S. F. R. Co. v. Zeiler, 54 Kan. 340, 38 Pac. 282; Clark v. Missouri P. R. Co. 48 Kan. 654, 29 Pac. 1138; Eighmy v. Union P. R. Co. 93 Iowa, 538, 27 L. R. A. 296, 61 N. W. 1056; Pearl v. West End Street R. Co. 176 Mass. But to hold an employer liable for the 177, 49 L. R. A. 826, 79 Am. St. Rep. incompetence of a surgeon employed by

40 Richardson v. Carbon Hill Coal Co. 6 Wash. 52, 20 L. R. A. 338, 32 Pac. 1012; Laubheim V. De Koninglyke Nederlandsche S. B. Maatschappy, 107 N. Y. 227, 1 Am. St. Rep. 815, 13 N. E. 781.

vision making an employer liable for the death of a person, caused by his negligence, or that of his servants or agents, refers to servants or agents engaged in some way in prosecuting his general business, and does not cover a case of death caused by negligence of the local surgeon in a pest camp maintained by him.41 These rules apply with equal force when an employer forms a relief department among his employees, employing a physician for their benefit;42 and an employer is not liable for the malpractice of physicians employed in hospitals maintained by him gratuitously, or by contributions from the employees for their benefit, when due care was used in their selection.43 But in such case if the employer obligates himself in the contract of employment to furnish a competent and skilful physician, he is liable to employees injured by negligent treatment.**

So, where an employer exacts deductions from the wages of all employees alike, and binds himself to furnish medical treatment with the funds thus secured to such of the employees as should get hurt or become sick while working for the employer, and the moneys paid by the employees and reserved by the employer yield a profit above all expenses, which profit is secured by the employer, and not held as a trust fund for the employees, the law will imply an undertaking to give proper treatment, and the employer will be held to be responsible to an employee for improper treatment.45 And an employer main

him for the benefit of his employees, there must be evidence of want of reasonable care in his selection, or actual notice of unfitness, or performance of such acts of negligence as would have affected the master with notice had he exercised due oversight and supervision. Big Stone Gap Iron Co. v. Ketron (Va.) 9 Va. Law Reg. 906, 45 S. E. 740.

And the conscious and deliberate choice of an injured employee, while in possession of his mental faculties, of the time when, place where, and person by whom, he will be treated, relieves his employer of any liability for failure to provide for other treatment. Ohio & M. R. Co. v. Early, 141 Ind. 73, 28 L. R. A. 546, 40 N. E. 257.

"Missouri, K. & T. R. Co. v. Freeman (Tex.) 79 S. W. 9.

company from liability for negligence in causing the injury, is not a charity which will relieve the department from liability for negligence in selecting a physician to treat an injured member of the department. Ibid.

Union P. R. Co. v. Artist, 23 L. R. A. 581, 9 C. C. A. 14, 19 U. S. App. 612, 60 Fed. 365; Eighmy v. Union P. R. Co. 93 Iowa, 538, 27 L. R. A. 296, 61 N. W. 1056; Poling v. San Antonio & A. P. R. Co. (Tex. Civ. App.) 75 S. W. 69.

"Haggerty v. St. Louis, K. & N. W. R. Co. 100 Mo. App. 424, 74 S. W. 456; Sawdey v. Spokane Falls & N. R. Co. 30 Wash. 349, 94 Am. St. Rep. 880, 70 Pac. 972.

Texas & P. Coal Co. v. Connaughten, 20 Tex. Civ. App. 642, 50 S. W. 173.

The question whether an employer Haggerty v. St. Louis. K. & N. W. who deducted sums of money from its R. Co. 100 Mo. App. 424, 74 S. W. 456. employee's wages for the maintenance But a relief department of a railroad of a hospital for the treatment of incompany, supported by sums of money jured and sick employees undertook to deducted from the wages of the em- treat an employee gratuitously, and was ployees, which was to be enjoyed by liable only for failure to use ordinary them if they suffered from sickness or care in selecting the surgeon, or conaccident, on condition of relieving the tracted to properly treat him in con

taining a hospital for treatment of his employees, with moneys deducted from their salaries, who takes an injured employee to the hospital, and enters upon his treatment without informing him that his contract is limited, or claiming to be treating him gratuitously, is estopped to claim that the treatment was gratuitous, in order to escape liability for malpractice of the physician employed."

46

506. Liability of carrier for malpractice of physician employed for passengers.-Railroad companies and other carriers are under no obligation to furnish medical aid to injured passengers, and cannot be held liable on a contract for such aid unless it is duly and properly authorized. Where a carrier, under requirement of law or by choice, however, provides a surgeon for the benefit of its passengers, its duty to the passengers is to select a reasonably competent man for that office; and it is liable for neglect or improper performance of that duty.48 But in performing such duty it is bound only to the exercise of reasonable care and diligence.49 And it is not compelled to select and employ the highest skill and longest experience.50 And when such selection is made, and the physician has been placed in charge, or arrangements have been made through which his services may be secured by the passengers, the duty and liability of the carrier are ended.51 After that, if a physician causes an injury by negligence or want of skill, he himself, and not the carrier, is responsible.52

507. Liability of charitable institutions and municipalities for malpractice. A public charitable institution such as a hospital deriving its funds from a public or private charity, and conducting its affairs for the public purpose of administering to the sick without compensation, is under duty to persons admitted to it to use due and reasonable care in the selection of proper agents and physicians.53 But when this

sideration of the moneys deducted from his pay, is one for the jury in an action for improper treatment, where the employee was injured after quitting work, on his way home from his place of employment. Sawdey v. Spokane Falls & N. R. Co. 30 Wash. 348, 94 Am. St. Rep. 880, 70 Pac. 972.

Ibid.

"Union P. R. Co. v. Beatty, 35 Kan. 265, 57 Am. Rep. 160, 10 Pac. 845.

"Laubheim v. DeKoninglyke Nederlandsche 8. B. Maatschappy, 107 N. Y. 228. 1 Am. St. Rep. 815, 13 N. E. 781. Ibid.

BOIbid.

Testimony as to confusion in the surgery of a steamship, and disorder in the arrangement of medicine, existing

after the vessel put to sea, and after the medicines were placed in charge of the physician, is not evidence of a neglect of duty upon the part of the shipowner, under a statutory requirement to employ a duly qualified physician, and provide a supply of medicines properly packed and labeled. Allan v. State S. S. Co. 132 N. Y. 91, 15 L. R. A. 166, 28 Am. St. Rep. 556, 30 N. E. 482.

61Secord v. St. Paul, M. & M. R. Co. 5 McCrary, 515, 18 Fed. 221; Allan v. State S. S. Co. 132 N. Y. 91, 15 L. R. A. 166. 28 Am. St. Rep. 556, 30 N. E. 482. 52 Ibid.

53 McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529; Wilson v. Brooklyn Homeopathic Hospital, 89 N. Y. Supp. 619.

is done, its duty is fulfilled; and it cannot be held liable for the neglect of such agents and physicians to perform their duty, or for its improper performance,54 or for the improper performance of duties by one who assumes to act without authority.55 And this rule is not affected by the fact that the institution through its agents is itself to determine who are to be the immediate objects of the charity,56 or by the fact that its funds are supplemented by such amounts as it may receive from those who are able to pay for the accommodation they receive.57 Nor can a hospital be held liable to a patient for negligence of a surgeon employed by the superintendent, where he had no authority to contract to furnish surgical services.58 Likewise, a municipality employing medical aid for its indigent poor, or other persons for whose care it is responsible, is not liable for negligence or malprac tice; it is only liable for negligence in the selection of the physician.59 508. Effect of contributory negligence.-To entitle a patient to recover of a physician for injuries caused by want of proper care or skill, there must have been no negligence on the part of the patient contributing to the result.60 And if the parents or persons in charge of a patient attempt to nurse him, and do not follow directions, and thus contribute to the injury, no recovery can be had against the physician.61 But an injured patient is not bound to seek aid from other physicians to mitigate the consequences of the mistakes of the attending physician.62 And the general rule is that a patient may recover

Hibbard v. Thompson, 109 Mass. 286; Hitchcock v. Burgett, 38 Mich. 501; Chamberlain v. Porter, 9 Minn. 260, Gil. 244; Link v. Sheldon, 45 N. Y. S. R. 165, 18 N. Y. Supp. 815; Geiselman v. Scott, 25 Ohio St. 86; Robison v. Gary, 28 Ohio St. 241; Reber v. Her. ring, 115 Pa. 599, 8 Atl. 830; Richards v. Willard, 176 Pa. 181, 35 Atl. 114;

Gramm v. Boerner, 56 Ind. 497; Soudder v. Crossan, 43 Ind. 343; Secord v. St. Paul, M. & M. R. Co. 5 McCrary, 515, 18 Fed. 221.

"Directly contribute" and "proximately contribute" are synonymous within this rule, though "proximately" is the better word. Davis v. Spicer, 27 Mo. App. 279.

"Potter v. Warner, 91 Pa. 362, 36 Am. Rep. 668; Sanderson v. Holland, 39 Mo. App. 233; Link v. Sheldon, 45 N. Y. S. R. 165, 18 N. Y. Supp. 815.

But a recovery against a surgeon for malpractice in improperly caring for an injured arm will not be prevented on the ground of the plaintiff's contributory negligence, where, if there was any neg ligence on the part of the plaintiff, it was the result of ignorance as to how the limb should be treated, which ignorance it was the duty of the physician to remove. Carpenter v. Blake, 60 Barb. 488.

Chamberlin v. Morgan, 68 Pa. 168;