Froid v. Knowles, 12803.

• Decision Date: 30 April 1934
• Docket Number: 12803.
• Citation: 95 Colo. 223,36 P.2d 156
• Parties: FROID v. KNOWLES.
• Court: Colorado Supreme Court

36 P.2d 156

95 Colo. 223

FROID v. KNOWLES.

No. 12803.

Supreme Court of Colorado, En Banc.

April 30, 1934

Rehearing Denied July 2, 1934.

Error to District Court, Weld County; Robert G. Smith, Judge.

Action by Randyll Froid against E. W. Knowles. To review a judgment sustaining defendant's general demurrer to plaintiff's replication and dismissing the action plaintiff brings error.

Reversed and demurrer overruled.

ADAMS C.J., and CAMPBELL and BOUCK, JJ., dissenting.

O. A. Erdman and Harry C. Riddle, both of Denver, for plaintiff in error.

Twitchell, Clark & Burkhardt and John M. Eckley, all of Denver, and Charles E. Southard, of Greeley, for defendant in error.

HILLIARD Justice.

Action against a physician and surgeon for alleged malpractice. Defendant's general demurrer to plaintiff's replication was sustained. Plaintiff elected to stand on his replication and suffered judgment of dismissal. Error is assigned.

It appears that plaintiff, employed as a county truck driver, was injured in the course of his employment; that the county was operating under the Workmen's Compensation Act (Laws 1919, p. 700, § 1 et seq., as amended), carrying insurance with the State Compensation Insurance Fund; that in due course plaintiff made application to the Industrial Commission to allow and fix his compensation; that through accommodation and adjustment, to which plaintiff, the county, the commission, and the insurance carrier were parties, settlement was effected. Defendant pleaded that in the settlement thus consummated, plaintiff received compensation for all his injuries, including any injury alleged to have resulted from defendant's treatment of plaintiff; but in his replication, to which the demurrer was sustained, plaintiff denied that the compensation received included anything on account of the injuries he claims to have suffered through defendant's alleged malpractice pleaded in his complaint, and alleged that no contractual relation or privity existed between defendant and the employing county. The defendant was not a party to the settlement, and the text of the receipt and release referred to by him was not pleaded. 'The allegation in the answer herein that the awards made to and accepted by the plaintiff were in compensation for all of the injuries set forth in the complaint is, at most, the conclusion of the pleader.' White v. Matthews, 221 A.D. 551, 224 N.Y.S. 559, 563.

The question is whether the settlement indicated may be invoked by defendant in absolution of the charge of malpractice against him. In simplification of the issue, the parties entered into stipulation, and on it the court made resolution. We review it so. The stipulation reads: 'That for the purpose of the determination of the demurrer interposed by the defendant to plaintiff's replication, it is agreed that the replication raises only an issue of law as to whether the settlement in compensation under the Workmen's Compensation Act received by the plaintiff constitutes a bar at law either under the statute or common law to any recovery against the defendant for malpractice, and that no issue of fact is tendered by said replication. It is agreed that the defendant Knowles was employed by the plaintiff himself and not by either the plaintiff's employer or by the Industrial Commission, and was paid by the plaintiff as a physician of plaintiff's own selection. In determining the questions raised by plaintiff's replication and defendant's demurrer thereto, the court may determine it in accordance with the foregoing stipulation as a matter of law and not of fact.'

Measured by the stipulated issue, unless he may escape through the plea that plaintiff's settlement with his employer under the Compensation Law operated to discharge defendant as well, he must answer as a tortfeasor to the charge of malpractice. It is informative to say that defendant has made other answer which will challenge attention in the event of trial.

It will aid our study, we think, if we shall keep in mind that the liability of a tortfeasor is predicated on fault; that of an employer, under the Compensation Act, on relationship. What plaintiff received from or through his employer resulted from relation; what he seeks from defendant is based on the latter's alleged fault. To the Workmen's Compensation Act, the purpose of which is 'to determine, define and prescribe the relations between employer and employee,' defendant was as a stranger. 'An outsider does not share the burdens of the act imposed upon the employer, and he is entitled to none of its benefits.' Hotel Equipment Co. v. Liddell, 32 Ga.App. 590, 124 S.E. 92, 94. The pleadings do not assuredly indicate that plaintiff's employer intended to, or did, pay for the secondary injuries which plaintiff alleges he suffered at the hands of defendant. The employer and his insurance carrier paid what they and plaintiff, the employee, agreed was the employing county's relational liability. Defendant, as we have seen, was neither party to the settlement nor privy with the employer. His counsel urge, however, that since plaintiff received what he was willing to deem his employer's liability, he thereby waived whatever rights he might otherwise have had against defendant. They cite the recent case of Henning v. Crested Butte Anthracite Mining Co., 92 Colo. 459, 21 P.2d 1115, 1116. We think it is not pertinent. There the physician was employed by the company, not by the injured man, and the employing company, not the alleged malpractitioner, was sued. The question in that case, as stated by counsel for the company, was 'whether an employee can recover from his employer for the malpractice of the physician.' Furthermore, judgment was rendered on the pleadings on a record of an undenied answer which alleged that plaintiff had made application for compensation, which had been approved, fixed, paid, and accepted, 'in 'full satisfaction and discharge of any and all liability of the defendant upon the cause of action attempted to be set up in the complaint,'' and 'that, under the award of the Industrial Commission, all right, title, and interest of the plaintiff in and to the cause of action attempted to be set out in the complaint was assigned to the Employers' Mutual Insurance Company, the insurance carrier of the defendant, which is still the owner thereof and the only party authorized to maintain an action thereon.' In essential and controlling facts the case itself is not only without point to the present inquiry, but mainly the authorities cited in the opinion, as should be, are of a kind. 'Every opinion,' as we have said, voicing a wise rule, 'must be read in the light of its own facts, and it is decisive only of the matters involved.' People v. Texas Co., 85 Colo. 289, 275 P. 896, 899. Other than as to the Hennig Case, which we distinguish, counsel agree that the right of an employee to proceed in damages against his own physician for malpractice, notwithstanding in the matter in which the malpractice is alleged to have occurred he has received compensation in settlement of his employer's relational obligation, has not been determined in this jurisdiction.

Preliminarily we may say, we find nothing in our Compensation Act which specifically precludes recovery as sought by plaintiff. With respect to parties coming within its provisions, and those excluded, the theory of compensation legislation has been discussed by many reviewing courts. In orderly development of the doctrine which we think justice requires us to adopt, we review some of the decisions. In a Delaware case this language is found: 'There is nothing in the provisions of the Compensation Act which destroys the liability of a non-employer tortfeasor to respond in damages to the proper party for the death of an employee, notwithstanding such employee or his dependents has or have accepted the benefits of the Workmen's Compensation Law. When the purpose of the Workmen's Compensation Act is borne in mind it would be highly unreasonable to assume that in its enactment the Legislature intended to save a class of wrongdoers who are in no wise related to the compensation scheme from the liability which the law had theretofore imposed upon them. The Workmen's Compensation Act concerns only employer and employee and is designed to afford a fair and equitable adjustment of their mutual rights and obligations, primarily for the benefit of the employee. A stranger to the employment is outside of the act's contemplation, and his liabilities are not intended by the act to be disturbed.' Silvia v. Scotten, 2 W. W. Harr. (32 Del.) 295, 122 A. 513, 514. 'The parties to the compensation agreement,' says the Pennsylvania Supreme Court, 'are the injured employee and the employer. * * * Compensation under the act does not include all the elements of damages, for illustration, pain and suffering Some states hold that the award includes all damages (see Ross v. Erickson Construction Co., 89 Wash. 634, 155 P. 153, L.R.A. 1916F, 319), but most other states hold that it does not. This compensation, then, is not accepted as a substitute for all damages incurred.' Again: 'The presumption must be that the law as to third persons in every respect stands as it was Before the act.' Courts should not adopt a 'construction as would in any way fetter its humane purposes.' Zimmer v. Casey, 296 Pa. 529, 146 A. 130, 131. In Wisconsin it is said: 'The purpose and effect of the Workmen's Compensation Act is to control regulate the relations between an employer and his employees. As between them the remedies there provided are exclusive when both are under the act at the time of the accident. The law does not attempt in any way to abridge the remedies which an employee of one person may have at law...