N.Y. C. Rd. Co. v. Wiler

Full title: THE NEW YORK CENTRAL RD. CO. v. WILER

Court: Supreme Court of Ohio

Date published: Jun 17, 1931

124 Ohio St. 118 (Ohio 1931)

177 N.E. 205

Opinion

No. 22770

Decided June 17, 1931.

Physician and patient — Relationship not created where railroad required physical examination of employe — Railroad and company physician, master and servant — Limitation of actions — Two-year statute applies, and not one-year for malpractice — Sections 11224-1 and 11225, General Code.

1. Where a railroad company requires of an employe that he submit to a physical examination by a physician employed by it for such purpose, and such examination has for its purpose the information of the company as distinguished from the treatment or cure of the employe, the submission by such employe to such examination does not of itself create the relationship of physician and patient between such physician and such employe.

2. In such situation the relationship between the railroad company and the physician is that of master and servant, unqualified by the fact that the servant is at the same time a physician.

3. An action in tort for an injury received by the employe in the course of such examination is subject to the limitation of Section 11224-1, General Code, and not to the limitation of Section 11225, General Code.

ERROR to the Court of Appeals of Lucas county.

The defendant in error, Fred Wiler, plaintiff below, filed his petition on the 28th day of July, 1930, and, upon leave, his amended petition on the 24th day of September, 1930. In his amended petition he alleged:

"That on or about August 9th, 1928, plaintiff was employed by the defendant company as a locomotive fireman, and that on this date he was instructed, directed, and commanded by his employer, the defendant herein, to go to the office of the defendant company's physician, and submit himself and allow himself to be physically examined, so his physical condition may be known to defendant, for the information of the defendant.

"Plaintiff says that in obedience to this command, and without his consent, and with the threat of losing his job if the command was not obeyed, he proceeded to the office of the company physician and submitted himself for physical examination as directed.

"That a physician in the employ of the defendant company made an examination under the direction of the defendant and while so doing, failed to exercise ordinary care in making the same, handled this plaintiff in a rough and unreasonable manner, and produced and brought about during and by this sort of examination a rupture on plaintiff's left side, from which plaintiff has ever since suffered. That this injury is more accurately defined as being a left inguinal hernia.

"Plaintiff says that this injury took place while the defendant's physician was feeling under and around the left groin, with his fingers, on a very tender and delicate part of the body, that at said time he used unusual force, and unreasonable pressure on this part of plaintiff's body and failed to exercise ordinary care in using an unnecessary degree of force."

To the amended petition the plaintiff in error filed a demurrer, upon the grounds (1) that said case has not been brought within the time limited by law for the commencement of such action; and (2) that plaintiff's amended petition does not contain facts sufficient in law to constitute a cause of action against the defendant.

The trial court sustained the demurrer, and, the defendant in error declining to plead further, entered final judgment against him. Upon error, the Court of Appeals reversed the judgment of the court of common pleas and remanded the cause for further proceedings. The case is here reviewed upon allowance of a motion to certify the record.

Messrs. Doyle Lewis, for plaintiff in error. Mr. Harold A. Kesler and Mr. Cyril E. Donnelly, for defendant in error.

ROBINSON, J.

The question here is whether the action is one for malpractice, and therefore subject to the limitation of Section 11225, General Code, and the rule of law announced by this court in the case of Youngstown Park Falls Street Ry. Co. v. Kessler, 84 Ohio St. 74, 95 N.E. 509, 36 L.R.A. (N.S.), 50, Ann. Cas., 1912B, 933, or whether it is the character of an action for bodily injury contemplated by the limitation of Section 11224-1, General Code.

The plaintiff in error, relying upon the holding of this court in Railway Co. v. Kessler, supra, assumes that when a railway company employs a physician to render any service for it and for its own purpose, which service such physician in his professional capacity might render to a patient for the patient's own purpose, its whole duty in the premises is to exercise reasonable care in the selection of such physician; and that when such physician, as its employe, performs a service for it upon the person of some one else, which service involves the employment of the knowledge and skill peculiar to such profession, there necessarily arises out of such service between the physician and the person upon whom he performs such service the relationship of physician and patient.

The case of Railway Co. v. Kessler, supra, arose out of the treatment of Kessler by the company's physician for an injury received by Kessler in alighting from one of the company's cars. It was alleged that the treatment was in pursuance of a contract between Kessler and the company, whereby the company agreed to furnish her medical attention in the treatment of such injury; that such treatment was not the proper treatment, and by reason of such improper treatment she sustained damage.

The purpose of the treatment in that case was to effect a cure of Kessler's injury. It was directly for the benefit of Kessler, and, if for the benefit of the company at all, only indirectly so, in mitigation of the damage it might be required to pay for causing the injury. This court held that such situation created the relationship of physician and patient between Kessler and the company's physician, and the fact that the company assumed the obligation to compensate the physician for such service did not alter that relation.

In the instant case, the allegations of the amended petition disclose the purpose of the examination was not to treat or cure the defendant in error; that the purpose of the examination was to inform the company of the physical condition of the defendant in error, to enable the company to intelligently determine whether it could safely and profitably continue him as one of its employes; that the examination was for the benefit of the company, as distinguished from an examination for the benefit of the defendant in error.

The examination detailed in the amended petition was not unlike the examination to which the plaintiff in a personal injury case may, by consent of the plaintiff or by an order of the court, submit himself to enable the defendant to determine and prove at the trial the physical condition of such plaintiff.

While the company no doubt selected a physician to make the examination in the instant case because, by reason of his training, he could more accurately furnish it the information it desired, its purpose in selecting the physician was not to treat and cure this employe, but to furnish it information which it required in the furtherance of its own purpose. Under such situation the relationship between the company and the physician was that of master and servant, unqualified by the fact that the servant was at the same time a physician.

Judgment affirmed.

MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.