Duprey v. Shane

Decision Date24 October 1952
Citation249 P.2d 8,39 Cal.2d 781
CourtCalifornia Supreme Court
PartiesDUPREY v. SHANE et al. S. F. 18614.

Newell J. Hooey, Robert L. Lamb and Herbert Chamberlain, San Francisco, for appellants.

Paul I. Myers, San Francisco, for respondent.

Partridge & O'Connell and Wallace O'Connell, San Francisco, as amici curiae on behalf of respondent.

PER CURIAM.

In this malpractice action defendants appeal from a judgment entered on a jury verdict in plaintiff's favor. Defendant's chief contention is that because plaintiff was an employe of defendants Shane at the time she was injured, she may not recover damages in this action at law but may only receive compensation in a proceeding before the Industrial Accident Commission under the workmen's compensation laws of this State. See Labor Code, § 3601. 1 A hearing was granted by this court, after decision by the District Court of Appeal, First Appellate District, Division One, for the purpose of giving further study to the problems presented. After such study we have concluded that the opinion of the District Court of Appeal, prepared by Presiding Justice Peters, affirming the judgment, correctly treats and disposes of the issues involved, and it is therefore adopted as and for the opinion of this court. Such opinion (with appropriate deletions and addita as indicated) is as follows:

'* * * The cast of characters involved in this legal drama are:

'Iva Mae Duprey, the plaintiff and respondent, employed as a practical nurse by The Shane Diagnostic Foundation;

'The Shane Diagnostic Foundation, a partnership engaged in the practice of chiropractic, a defendant and appellant;

'Dr. Raymond Shane and his wife Helen, defendants and appellants, who are partners doing business under the name of The Shane Diagnostic Foundation;

'Dr. John J. Harrison, a defendant and appellant, who is a chiropractor employed by The Shane Diagnostic Foundation during the period here involved.

'This is a malpractice action brought by Duprey against The Shane Diagnostic Foundation, the two Shanes, and Dr. Harrison. The basic theory of the suit is that on December 8, 1947, the * * * (plaintiff) received injuries to her neck and body while working at her employment; that thereafter she was treated by her fellow employee Dr. Harrison, and by her employer, Dr. Shane; that such treatments were negligently administered, resulting in a new and further disability, for which damages are sought. The basic defense on this appeal is that the superior court had no jurisdiction of the * * * (defendants), or of the subject matter of the action, because, so it is claimed, the injury arose in the course and scope of the employment, and the Industrial Accident Commission has exclusive jurisdiction. Admittedly, the commission has made an award to * * * (plaintiff), and it is claimed that this award is res judicata of all of the issues in this action. The trial court overruled demurrers, objections to the introduction of evidence, motions for nonsuit and for a directed verdict and other motions, all raising this basic question of jurisdiction. The jury brought in a verdict for $19,572.40 against the * * * (defendants) above named, judgment was entered on this verdict, and a motion for a new trial denied.

'On this appeal * * * (defendants) make three basic contentions:

'(1) That the Industrial Accident Commission has exclusive jurisdiction over all of the injuries sustained by * * * (plaintiff), and its decision is res judicata of all of the issues involved herein;

'(2) That, as a matter of law, the evidence is insufficient to sustain the judgment against Dr. Harrison. The other defendants do not urge the insufficiency of the evidence to show negligence;

'(3) That the judgment is demonstrably excessive in the amount of $2,351.81.

'The Facts Most Favorable to * * * (Plaintiff)

'It was stipulated that Helen and Dr. Shane were partners doing business as The Shane Diagnostic Foundation; that Dr. Harrison was employed as a chiropractor by this partnership and was such during the week of December 8 to 15, 1947; that * * * (plaintiff) was an employee of the partnership on December 8, 1947, and that she was paid her wages for the week of December 8th to the 15th, and tried to work during that period.

'On December 8, 1947, it is admitted that * * * (plaintiff) was injured in an accident arising out of her employment. On that day, as a practical nurse and in the course and scope a her duties, she was giving therapy to a patient. The patient, in moving around in the course of the treatment, started to roll off the treatment table. * * * (Plaintiff), who was standing on the opposite side of the table from which the patient was falling, grabbed the patient in order to break the fall. The patient grabbed * * * (plaintiff) by her hands and the lower part of her arms, and thus the patient was eased to the floor. The * * * (plaintiff) was pulled across the table with a 'terrific yank' to her shoulder. No injury to her neck was then received, according to * * * (plaintiff).

'A short time after this incident * * * (plaintiff) began to suffer pain in her right arm and shoulder, and her head began to ache. She spoke to Dr. Harrison about her pains, and, according to her testimony, he told her that headaches were his specialty and to come into his office and he would fix it up. This all occurred on the afternoon of December 8th. Dr. Harrison gave her what is referred to as a 'Palmer adjustment,' that is, the application of pressure to the neck while the patient is reclining. * * * (Planitiff) testified that this treatment was suggested by Dr. Harrison and consented to by her, and that Dr. Harrison gave her this same treatment several times that afternoon, after asking (* * *) (plaintiff) if she were better, and receiving a negative reply.

'Dr. Harrison's testimony is not very satisfactory. He stated that he gave * * * (plaintiff) a treatment during the morning of December 8th, but he also testified that he 'palpated' her back, spine and neck after the accident, on 'some' afternoon, and made an examination. On this examination, he stated, he discovered an area of tenderness, normal spastic tissue found in cases of pain, and a soreness and stiffness of the cervical area. He testified that he did not then manipulate or adjust * * * (plaintiff) spine or neck, although he also testified that he 'manipulated her or adjusted her.' At any rate, it is admitted that Dr. Harrison did not then or thereafter have any X-rays made, nor did he make a fluoroscopic examination.

'* * * (Plaintiff) testified that on December 9th, 10th, 11th and 12th Dr. Harrison gave her several chiropractic adjustments and manipulations each day, similar to the treatments of December 8th, that considerable pressure was applied each time, and that such treatments were very painful. Dr. Harrison could not remember giving * * * (plaintiff) any treatments on these days. * * * (Plaintiff) also testified that the pain increased with each adjustment, that a completely new pain developed in her neck, that she suffered terrible headaches, and that her head began to fall to one side. Other doctors in the office looked at her through a fluoroscope on December 12th, but no X-rays were taken.

'* * * (Plaintiff) testified that she was treated during part of this period by Dr. Shane. She testified that on December 10th, Dr. Shane gave her a 'quick cervical' a twisting and jerking of the head in the effort to try and snap in anything out of place. Similar treatment was given to her by Dr. Shane on December 11th. No X-rays were taken by Dr. Shane.

'Dr. Shane denied that he gave * * * (plaintiff) any chiropractic treatments on the days here involved, but testified that he examined her cervical spine on December 12th, but did not then examine the back of her head or her right shoulder. It was his testimony that * * * (plaintiff's) head was rigid but erect, and that he could not then make a good examination because of the pain. Dr. Harrison, too, claimed that the reason he had not treated * * * (plaintiff) was because of the pain spasm then present. This, he contended, prevented him from ascertaining the nature of the difficulty, although at another place he testified that his examination revealed a 'subluxation of the fourth cervical vertebra,' which means that that vertebra was out of place. Dr. Harrison testified that such condition requires an adjustment, but that such cannot be done when there is spastic tissue present. Heat and other forms of therapy will relieve the spastic condition. X-rays were not taken by him because he did not believe that the condition he found required them, and he had no cause to suspect a fracture.

'Dr. Shane, who was not particularly active in treating patients, testified that a vertebral fracture could be identified by palpation finger pressure but that to ascertain the type and degree, X-rays would be necessary. He thought that it would be bad practice for a chiropractor to treat a fracture.

'By December 12th, according to * * * (plaintiff), she could not hold up her head, the entire right side of her body was very painful, and she could hardly use her right arm or walk. On December 13th a Saturday she told several of the doctors at her place of employment that she could not stand the pain any longer and believed that X-rays should be taken, and she had X-rays taken that day. Her condition became worse over the week end, and on Monday, December 15th, she consulted a * * * physician and surgeon, Dr. Karfiol. This doctor took more X-rays which showed a partial dislocation of the fourth cervical vertebra. He hospitalized * * * (plaintiff) on December 18th and kept her in traction for about two weeks, which made the dislocation no longer visible.

'This physician testified that he applied traction rather than manipulation because he does not manipulate spines if there is an anatomical injury, that is, a disorder...

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