Hancock v. Halliday

• Decision Date: 07 December 1943
• Docket Number: 7071
• Parties: CHARLES HANCOCK, Appellant, v. A. B. HALLIDAY, R. E. STALEY, E. G. LEE and GLENN McCAFFERY, Respondents
• Court: Idaho Supreme Court

150 P.2d 137

65 Idaho 645

CHARLES HANCOCK, Appellant, v. A. B. HALLIDAY, R. E. STALEY, E. G. LEE and GLENN McCAFFERY, Respondents

No. 7071

Supreme Court of Idaho

December 7, 1943

On Rehearing July 11, 1944.

Workmen's compensation

An injured employee may maintain common law action in district court for malpractice of physicians, who had contract with employer to furnish medical, hospital and surgical attendance to injured employees, in treating injuries which arose out of and in course of employment or claim compensation before the Board. (I. C. A., secs. 43-902; 43-1003 to 43-1005, 43-1107 to 43-1109; 43- 1413 as amended by Sess. Laws. 1937, chap. 175, sec. 3; Const. art 1, sec. 13.)

On Rehearing July 11, 1944.

Appeal from the District Court of the First Judicial District of the State of Idaho, in and for the County of Shoshone. Hon. Ed S. Elder, Presiding Judge.

Reversed.

T. P. Wormward and Frank Griffin for appellant.

The Workmen's Compensation Act does not deprive appellant of his common law rights and remedies against respondents; the relationship of employer and employee does not exist between appellant and respondents; respondents stand in the relation of third parties to appellant; therefore appellant's common law rights are preserved. (43-1004, I. C. A.; Lebak v. Nelson, 107 P.2d 1054, 1061.)

Respondents are not the agents of the employer, and after a hospital contract is concluded the employer steps out of the picture. (Flock v. Palumbo Fruit Co., 118 P.2d 707, 711; Borgeas v. Oregon Short Line RR. Co., 236 P. 1069, 1071, 1074.)

The relationship of master and servant and their mutual rights and liabilities is the primary concern of the Compensation Acts. Unless the relationship of employer and employee, or master and servant, exist, the Acts have no bearing on a claim for personal injury damages. (Schneider on Workmen's Compensation, 3rd Ed., sec. 2; Maurello v. Maurello, 10 N. J. M. 950, 161 A. 844; Montgomery v. Bd. of Comm'rs., 158 N.E. 278 (Ohio); Smith v. St. Ind. Acc. Com., 23 P.2d 904, 25 P.2d 1119 (Ore.)

A right to compensation under the Workmen's Compensation Act does not bar an action for mal-practice. (Smith v. Coleman, 116 P.2d 133 (Cal.); Smith v. Golden State Hospital, 296 P. 127 (Cal.); Tierney v. Tierney, 223 N.W. 773; Mitchell v. Dillingham, 22 S.W.2d 971 (Tex.); Pedigo v. Croom, 37 S.W.2d 1074 (Tex.)

The liability of the malpracticing physician is predicated upon negligence, a tort. His responsibility is based solely upon personal fault. It is not founded upon the basis of the employer's relationship liability. (McGough v. McCarthy Improvement Co., 287 N.W. 857, 860.)

Robert E. Brown and Cannon, McKevitt and Fraser for respondents.

The Legislature of the State of Idaho has fixed the remedy of an employe injured by accident arising out of and in the course of his employment as exclusively within the jurisdiction of the Industrial Accident Board. Such jursidiction embraces aggravation of injuries received by an employe in the course of his employment and occurring through the acts, negligent or otherwise, of contract doctors. (Sec. 43-1003, I. C. A.; sec. 43-1108, I. C. A.; sec. 43-1109, I. C. A.; Arneson v. Robinson, 59 Ida. 223; Flock v. J. C. Palumbo Fruit Co., (Ida.) 118 P.2d 707.)

An exception is made only where the injury received in the course of employment by an employe is at the hands of a third person between whom and the injured party no relationship of any kind or character exists. In such a case the Supreme Court of Idaho has decided that the employe or his dependents, in the event of his death, may institute a civil action. This is true, however, only when the injury for which compensation is payable shall have been sustained at the hands of such third person. (Sec. 43-1004, I. C. A.; Lebak v. Nelson, (Ida.) 107 P.2d 1054.)

The fact that an injury received by an individual in the course of his employment not at the hands of a third person is aggravated by treatment amounting to malpractice at the hands of a contract physician does not change the remedy accorded the individual under the Workmen's Compensation Act. The aggravation of the original injury is proximate to it and the exclusive remedy is fixed under the Workmen's Compensation Law. (Roman v. Smith, (Ida.) 42 F.2d 931; Flock v. J. C. Palumbo Fruit Co., (Ida.) 118 P.2d 707; Ross v. Erickson Construction Co., (Wash.) 155 P. 153.)

Ralph R. Breshears, Robert H. Elder, W. F. McNaughton and Wm. D. Keeton amici curiae on rehearing.

Dunlap, J. Mr. Justice Givens concurs in this opinion. Budge, J., concurring specially. Ailshie, J., dissenting. Holden, C. J., concurs in this dissent.

OPINION

Dunlap, J.

It appears by the complaint herein, appellant, while engaged in his work as a miner in the employ of the Bunker Hill & Sullivan Mining Company at Kellogg, Idaho, sustained an injury which arose out of and in the course of his employment; that thereafter he was treated therefor at the Wardner Hospital, the place of business of physicians R. E. Staley and Glenn McCaffery, two of the respondents herein, who previously had entered into a hospital contract with the mining company to furnish medical hospital and surgical attendance to the company's employees under the provisions of Section 43-1108, I. C. A.; that under the plan for the hospital services and medical treatment to be furnished by said physicians, there was diverted from the wages of appellant the sum of One Dollar per month, which was paid to the contract physicians; that the treatment of appellant for the injury thus sustained, was negligently and carelessly rendered by respondents, in the particulars set out in the complaint, necessitating the amputation of appellant's right leg at the knee joint. The acts of negligence are pleaded in detail and appellant also charges that by reason thereof he suffered excruciating pain between the 25th day of February 1941, to about the 30th day of December, 1941, during which period he was under the care of respondents. The complaint charges gross negligence, both in diagnosis and treatment, claims damages in the sum of $ 30,000.00 for which sum judgment is sought against all of the defendants, respondents here.

Respondents interposed a demurrer to the complaint on the grounds: (1) -- That it does not state facts sufficient to constitute a cause of action; (2) -- That the court has no jurisdiction of the subject of the action; and (3) -- That it is ambiguous, uncertain and unintelligible in certain particulars therein pointed out.

The trial court by order duly made and entered, sustained the demurrer without leave to amend, and thereafter entered judgment in favor of respondents, against appellant, ordering and decreeing that appellant take nothing by this action, and that respondents have and recover their cost.

The appeal is from the judgment so entered.

Appellant has alleged a number of assignments of error but they all revolve around the principal question of jurisdiction of the trial court to hear and determine the cause of action as alleged. In other words, the principal question for our consideration here, is whether or not the district court has jurisdiction to try this suit, or is the employee's remedy for the alleged damage to his body limited to recovery of compensation as provided by our Workmen's Compensation Law.

Appellant contends that his right to compensation under the Workmen's Compensation Act does not bar such an action for malpractice.

The precise question has apparently never been decided by this Court.

Various courts have taken opposite views on the matter and there is some conflict in the decisions, which to some extent may be explained by the difference in the provisions of the compensation acts. (82 A. L. R., p. 934.)

As stated by Mr. Justice Givens in Arneson v. Robinson, 59 Ida. 223, 82 P.2d 249, "Decisions of courts on somewhat closely analogous questions under statutes not sufficiently similar to ours or not raising the precise question, are not particularly helpful nor controlling. It is primarily a question of legislative intent as expressed in the statute directly or by necessary implication."

The pertinent sections of our statute are Sections 43-902, ^[1] 43-1003, ^[2] 43-1004, ^[3] 43-1005, ^[4] 43-1107, ^[5] 43-1108, ^[6] 43-1109, ^[7] Section 43-1413, I. C. A., as amended by Section 3, Chap. 175, 1937 Session Laws. ^[8]

Under the provisions of Section 43-1003, I. C. A., the rights and remedies granted by the Act to an employee on account of a personal injury for which he is entitled to compensation under the act excludes all other rights and remedies of the employee at common law or otherwise, on account of such injury.

This abridgement of the workman's remedies, however, is not applicable when the injury for which compensation is payable under the act, has been sustained under circumstances creating in some person other than the employer, a legal liability to pay damages in respect thereto, in which event it is provided by the act that the injured employee may at his option, either claim compensation under the act, or obtain damages or proceed at law against such other person to recover damages. (Section 43-1004, I. C. A.)

Thus it is clear that the common law right of action of an employee against a third person to recover damages for personal injuries sustained by actionable negligence of such third person was not abolished by the act, and this Court, speaking through our learned Mr. Chief Justice Holden, in Lebak v. Nelson, 62 Ida. 96, 107 P.2d 1054, so held, in the following words: "It must be constantly kept in mind the common law action of an employee against a third person to recover damages for personal injuries sustained by reason of...