(after stating the facts). It is insisted 'by appellant that it was not maintaining its hospital department and employing physicians with the expectation of deriving any gain or profit therefrom, and that it was only liable, in furnishing medical attention to deceased, to use reasonable and ordinary care in the selection of competent and skilled physicians to administer it, and not for the negligence or malpractice of such physicians so selected; and by appellee that since said railroad company employed its physicians and maintained and supported its hospital by deductions made from the wages of its employees, without regard to their consent thereto, in fact assuming for pay taken from its said employees to furnish them proper medical, and surgical attention, that it was bound to answer for the negligence of its said physicians in their treatment of such employees. This question is for the first time before our court, and it has been decided differently 'by the courts of other jurisdictions. A physician cannot be regarded as an agent or servant in the usual sense of the term, since he is not and necessarily cannot be directed in the diagnosing of diseases and injuries and prescribing treatment therefor, his office being to exercise his best skill and judgment in such matters, without control from those by whom he is called or his fees are paid. It is generally held that hospitals conducted for charity are not responsible for the negligence or malpractice of their physicians, and that persons and hospitals who treat patients for hire with the expectation and hope of securing therefrom gain and profit are liable for such negligence and malpractice on their part.
It is alleged in this case that deductions were made monthly from the salary of the intestate, as required by the rules and regulations of the company, “for the support and maintenance of the hospital department of said compány, and, in return for such monthly payments or assessments, it was understood by and between said company and said Campbell that lie should receive proper medical and surgical attention to be supplied and furnished by said defendant whenever the emergency and necessity for said medical and surgical attention arose.”
There was no allegation that such hospital department was conducted for gain or profit to thé company, and no proof showing that any such gain or profit resulted to it because of such deductions from the wages of its employees, over and above the maintenance and support of said hospital department, and the company denied any understanding or agreement on its part to furnish proper medical attention for the deductions made.
It could not be said to be conducted as a charity, for only those employees who had contributed the fees deducted from their wages for its maintenance were entitled to enter there for treatment, and all the physicians and employees required to maintain and operate it were paid from such fund. Nor can it be said to have been administered by the railroad company out of pure philanthropy, since it may have had some benefit therefrom in decrease of amount of damages for injuries caused in the operation of the road, and the better and more efficient service to the company by its employees because of its maintenance. It is also true that none of the employees are required to accept the treatment provided at said hospital, and cannot do so unless before their service with the railroad company is ended, thus in effect creating a fund for the benefit of themselves it may be, and certainly for others, for how few of all those contributing thereto receive any personal benefit therefrom and how small a part of the expense of caring for an injured employee was actually paid by him, to provide hospital accommodations and medical skill and attention, to relieve pain and suffering and restore health, without any hope of any other profit or gain upon their part, and without any purpose upon the part of the company in the deduction of the fees from their wages and collecting such fund other than to administer it for the support and maintenance of the said hospital department, as alleged, and without any gain or profit therefrom to it, so far as the testimony in this case shows. It was not contemplated by such employees in their contribution to this fund that it should be used in the payment of damages for the negligence or malpractice of physicians employed in the operation of such department, and certainly the railroad company that assumed gratuitously to collect and preserve such 'fund and provide hospital accommodations and competent physicians and surgeons to operate it, without any profit or gain or hope thereof therefrom, should not be required to pay damages for such negligence or malpractice, it being no part of its business under its charter to maintain a hospital. At most, it can only be considered a trustee for the proper administration and expenditure of such fund, and should be held only to ordinary care in the selection of competent and skillful physicians to administer relief and provide attention to sick and injured employees. Union Pac. R. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 142, 3 L. R. A. 851; Big Stone Gap Co. v. Ketron, 102 Va. 23, 45 S. E. 740; Texas Central Rd. Co. v. Zumwalt (Texas) 132 S. W. 113; Louisville & Nashville Rd. Co. v. Ford, 104 Ky. 456, 47 S. W. 342; Cummings v. C. & N. W. Ry. Co., 189 Ill. 608; Fire Ins. Patrol v. Boyd, 120 Pa. 643, 15 Atl. 533, 1 L. R. A. (N. S.) 417.
It follows that the instruction No. 16, given on the part of appellant, was a correct statement of the law defining the care required of it in the selection of competent and skilled physidans, and that said instructions 1, 2 and 3, being in conflict therewith and requiring a different and higher degree of care of the railroad company and holding it responsible for negligence and malpractice on the part of physicians employed for its hospital department and treatment of employees, were erroneous, and should not have been given.
II. If the railroad company did in fact realize a profit from the total deductions from the wages of its employees for the hospital fund, after paying for the support and maintenance thereof, and the employment of physicians, or if it agreed and contracted with such employees, in consideration of the. fees paid by them, to furnish proper medical attention, the rule might be different. No such contract of employment to furnish medical attention for such consideration was shown to exist, nor was it shown that the funds so collected amounted to more than the expenses. of carrying on said hospital department, nor that any of such fund was used by the railroad company. The testimony of the chief surgeon as to the receipt and disbursement of the funds, same being paid out by his direction, was that it was for the maintenance of hospital and emergency hospitals for treating-sick and injured employees, and not for gain or profit. “The funds so derived are used solely for that purpose” was competent and should not have been withdrawn.
There was no error in permitting- the hypothetical questions to be asked. In Missouri & N. Ark. Rd. Co. v. Daniels, ante, p. 352, the 'court said: “In propounding a hypothetical question to an expert witness, the data upon which -it is -based need not cover all of the facts which have been proved in the case. The party-offering the testimony may select -such f-ac-ts as he conceives to have been proved, and predicate his hypothetical question thereon.”
And in Taylor v. McClintock, 87 Aide. 243:
“The party desiring opinion evidence from experts may elicit such opinion upon the -whole evidence or any part thereof, and it is not necessary that the facts stated as established -by the evidence should be uncontroverted. Either party may state the facts which he claims the evidence shows, and the question will not be defective if there be any evidence tending to prove such facts.”
For t'he errors indicated, the judgment is reversed, and the cause remanded.