Deauville v. Hall

• Decision Date: 26 January 1961
• Citation: 188 Cal.App.2d 535,10 Cal.Rptr. 511
• Parties: John DEAUVILLE, Plaintiff and Appellant, v. Don HALL, Walt Disney Prods., Defendants and Respondents. Civ. 24797.
• Court: California Court of Appeals Court of Appeals

Page 511

10 Cal.Rptr. 511

188 Cal.App.2d 535

John DEAUVILLE, Plaintiff and Appellant, v. Don HALL, Walt Disney Prods., Defendants and Respondents.

Civ. 24797.

District Court of Appeal, Second District, Division 1, California.

Jan. 26, 1961.

Hearing Denied March 22, 1961.

John Deauville, in pro. per.

Thomas P. Menzies and James O. White, Jr., Los Angeles, for respondent.

LILLIE, Justice.

Plaintiff in propria persona filed a negligence action against his employer, Walt Disney Prods., and one Don Hall for aggravating a disability arising out of an injury compensable under the Workmen's Compensation Act. Principally on the ground that the Superior Court has no jurisdiction over the cause the lower court sustained a demurrer to the third amended complaint. Plaintiff appeals from the judgment entered against him on the order; Walt Disney Prods. is the sole respondent.

The complaint alleges that on July 22, 1958, plaintiff was injured while working for Walt Disney Prods., and that Don Hall, an employee, 'negligently sent plaintiff to a physician who was not qualified to treat plainfiff' (P. III); that Hall knew or should have known that said physician was unable to treat plaintiff (P. IV); that the doctor examined plaintiff, had X-rays taken of his left knee and informed him that the X-ray revealed nothing (P. V); that on September 29, 1958, plaintiff had a second set of X-rays taken which revealed a fracture and several bone fragments (P. VI); and that he suffered injury as a proximate result thereof (P. VII).

A demurrer on the ground the complaint failed to state facts sufficient to constitute a cause of action was sustained. Plaintiff amended in the form of Paragraph VIII: 'The right diagnosis of injury sustained while an employee for Disney Studio July 22, 1958, when given attention by first aid man, warranted sending plaintiff to hospital and given proper medical attention immediately. The symptoms consisted of extreme swelling and painful walking and falling on a dislocated knee joint to the hard ground was involved to extend proper medical treatment again warranted hospitalization.'

Demurrer sustained, plaintiff amended a second time alleging: 'The negligence involved in not giving proper medical attention and hospitalization for injury to plaintiff's knee sustained while working for Disney Studio July 22, 1958, at Janss Ranch resulted in permanent disability to the left leg.' (P. IX).

A third demurrer sustained, plaintiff again amended by alleging in Paragraph X that defendants, though insured by the State Compensation Insurance Fund, are not exempt from giving proper medical attention to injuries sustained by employees while on the job; that 'a crushed and shattered knee joint caused by falling after a dislocation of knee while running caused by left heel getting caught in hole or crack in ground, along with injury to right knee and injury to lumbarsacral disc, warranted more than knee bandage'; that his injuries still prevail and 'gross negligence due to lack of proper medical attention on defendant's part with regard to plaintiff warrants a cause of action in the Superior Court.' A demurrer, general and special for ambiguity, uncertainty and unintelligibility, was interposed and sustained without leave to amend.

Appellant's principal agrument is that an employee's remedy for the aggravation of an industrial injury is not within the exclusive jurisdiction of the Industrial Accident Commission where the employer 'undertakes like a physician to examine, diagnose, treat, and care for the industrial injury and does so negligently.' (A.O.B. p. 8).

The pleading and its successive amendments, brief and factually incomplete, we analyze to constitute primarily a suit against plaintiff's insured employer for the negligence of its employee Hall in sending plaintiff, who injured his knee on the job, for treatment to an unqualified doctor who negligently diagnosed the injury and failed to give him the proper medical treatment and hospitalization; however, appellant now relies mainly upon his asserted right to sue his employer where it 'undertakes like a physician to examine, diagnose, treat and care for an industrial injury and does so negligently,' predicating his claim on Paragraph VIII of the second amended complaint alleging that the 'right diagnosis' of his injury 'when given attention by first aid man' warranted immediate hospitalization and proper medical care. Thus, plaintiff seeks to hold his insured employer in an independent suit on two theories--for its negligence in sending him to an unqualified doctor who, by his negligent diagnosis and treatment aggravated the injury; and for its negligence, through a first aid man, for failing to rightly diagnose plaintiff's injury in the process of securing medical aid for him. Although appellant extensively argues the latter in support of his cause and appears to concede that his first position is not warranted, because of the nature of his pleading we propose to discuss both theories of the case, neither of which we find to be sound.

It is not disputed that plaintiff's knee was injured in the course of his employment with Walt Disney Prods.; on its face the pleading reveals that the employer was insured by the State Compensation Insurance Fund; and it is conceded that the Commission has exclusive jurisdiction over the original industrial injury (Section 3601 Labor Code [1958]); Scott v. Industrial Accident Commission, 46 Cal.2d 76, 293 P.2d 18; Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8, Popejoy v. Hannon, 37 Cal.2d 159, 231 P.2d 484; Baugh v. Rogers, 24 Cal.2d 200, 148 P.2d 633, 152 A.L.R. 1043; Moise v. Owens, 96 Cal.App.2d 617, 216 P.2d 22.

The Workmen's Compensation Act provides an exclusive and complete system of compensation for injuries to employees arising out of and in the course of their employment (Fitzpatrick v. Fidelity & Casualty Co., 7 Cal.2d 230, 60 P.2d 276); neither strictly in tort nor in contract, liability is imposed under the Act incident to the status of employment. Quong Ham Wah Co. v. Industrial Accident Commission, 184 Cal. 26, 192 P. 1021, 12 A.L.R. 1190; Noe v. Travelers Ins. Co., 172 Cal.App.2d 731, 342 P.2d 976. By his complaint appellant submits that even though insured, the employer is not exempt from giving an injured employee proper medical treatment, and that the latter should be permitted an independent action where, through the employer's negligence the original compensable injury was aggravated by the carelessness of an unqualified doctor; and specifically argues in his opening brief that the negligent act of the employer's first aid man in 'diagnosing' his symptoms 'like a doctor' gives Walt Disney Prods. a status separate and apart from that of the employer, transforming it into a 'third person' justifying the application of the rule of Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8.

For the purpose of further discussion and review of decisional authorities, we shall treat the term 'employer' and 'carrier' interchangeably. Fitzpatrick v. Fidelity & Casualty Co., 7 Cal.2d 230, 60 P.2d 276; Noe v. Travelers Ins. Co., 172 Cal.App.2d 731, 342 P.2d 976.

Inasmuch as insurance coverage of the employer and plaintiff's industrial injury appear on the face of the pleading, it is clear that the Superior Court is without jurisdiction in the matter (Scott v. Industrial Accident Commission, 46 Cal.2d 76, 293 P.2d 18; Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8; Popejoy v. Hannon, 37 Cal.2d 159, 231 P.2d 484; Baugh v. Rogers, 24 Cal.2d 200, 148 P.2d 633), unless therein plaintiff has alleged facts constituting an exception to the rule that an injured employee must pursue his remedy before the Industrial Accident Commission. Butler v. Wyman, 128 Cal.App. 736, 18 P.2d 354. We find no such exception in the pleading or under the facts, not alleged, but presented by appellant in his brief.

It is the duty of an employer under the Act to provide an injured employee with that medical, surgical and hospital treatment which is reasonably required to cure or relieve from the effects of the injury (Section 4600, Labor Code) and to take the initiative in furnishing the same. Larson v. Holbrook, 2 I.A.C. 130. But there is nothing in the Act or the authorities to warrant an action in a court of law against an employer for the latter's negligence in providing that medical treatment. On the contrary, the Act makes the employer liable for expenses incurred by the employee for treatment if the former neglects or refuses seasonably to provide the same (Section 4600), and places exclusive power of enforcement of the obligation in the Commission (Section 5304; Noe v. Travelers Ins. Co., 172 Cal.App.2d 731, 342 P.2d 976; Pacific Indem. Co., v. Industrial Acc. Comm., 85 Cal.App.2d 490, 193 P.2d 117; Union Iron Works v. Industrial Acc. Comm., 190 Cal. 33, 210 P. 410; Draney v. Industrial Acc. Comm., 95 Cal.App.2d 64, 212 P.2d 49; Pacific Elec. Ry. Co. v. Industrial Acc. Comm., 96 Cal.App.2d 651, 216 P.2d 135); and predicated on the theory that independent suits would ultimately result in a breakdown in the system of compensation for industrial injuries and create unwarranted confusion and increased unnecessary litigation, the rule is that for whatever aggravated or increased disability arises out of any negligence on the part of the employer or carrier in providing medical treatment, the injured employee shall pursue his remedy therefor under the Act. In Noe v. Travelers Ins. Co., 172 Cal.App.2d 731, 342 P.2d 976, a carrier was sued for aggravated disability caused by a delay in furnishing medical treatment; rejecting the contention that the carrier's arrogation to itself of the authority to delay an operation on the plaintiff gave it a 'third party' status justifying an independent action, the court stated, 172 Cal.App.2d at page 737, 342 P.2d at page 979: 'But, beyond the legalistic objection to appellant's position, we must point out that if...