Liliopoulos v. Oregon-Washington Railroad & Navigation Co.

Citations

• 87 Wash. 396
• 151 P. 818
• 1915 Wash. LEXIS 916

Syllabus

<p>Pleading — Variance — Materiality. A variance between the pleading and proof, in that plaintiff alleged a hiring under a rule and custom of the company entitling him to certain benefits, and proved an oral special contract entitling him to further benefits, is not material unless the adverse party has been actually misled to his prejudice, and will, be deemed amended to conform to the proof, under the express provisions'of Rem. & Bal. Code, §§299, 300.</p> <p>Trial—Instructions—Issues. Where pleadings should be deemed amended to conform to the proof, the instructions to the jury properly treat the issues as being as broad as the evidence.</p> <p>Master and Servant—Medical Attendance—Terms op Contract —Employment by Agent—Presumptions. Where a foreman was authorized to employ and discharge men, presumptively he is authorized to state the terms of the contract entitling one hired by him to medical and hospital services should he become sick or injured; and if the foreman oversteps his authority, any loss caused thereby must fall upon the person whose agent he was.</p> <p>Same—Hospital Attendance—Notice op Injury—Agents. Notice to a foreman of an injury requiring hospital attendance is notice to the company, where the foreman made the contract of hire agreeing to furnish the attendance, was in charge of the force of men of which the injured man formed a part, and was the company’s only representative authorized to deal with him; and it is immaterial that the accident happened on a holiday while the men were not engaged in the service of the company.</p> <p>Same—Hospital Attendance—Failure to Furnish—Damages— Question por Jury. Whether the loss of an employee’s arm was due to the defendant’s breach of contract to furnish medical services, is a question for the jury, where defendant’s failure resulted in failing to secure treatment for four days, necessitating amputation, and there was expert evidence tending to show that his arm would have been saved if it had receiv