Hanson v. Norton

• Decision Date: 17 March 1937
• Docket Number: 34263
• Citation: 103 S.W.2d 1,340 Mo. 1012
• Parties: A. W. Hanson, Appellant, v. W. H. Norton
• Court: Missouri Supreme Court

103 S.W.2d 1

340 Mo. 1012

A. W. Hanson, Appellant, v. W. H. Norton

No. 34263

Supreme Court of Missouri

March 17, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Clyde C Beck, Judge.

Affirmed.

Bass & Bass and John Grossman for appellant.

(1) At common law an injured person may sue either the person whose negligence caused the accident, or a physician whose malpractice aggravated the injury, or both in separate actions, and recover from each the amount of damages resulting from the negligence, or unskillful treatment without prejudice to a separate right of action against the other, since both actions are separate and distinct. Parkell v. Fitzporter, 301 Mo. 217, 256 S.W. 239; Staehlin v. Hochdoerfer, 235 S.W. 1060. (2) The Missouri Workmen's Compensation Act does not alter, nor restrict the right of the employee, which the employee had under the common law, to hold the physician liable for malpractice, even though he accepts compensation for his injuries, the aggrevation of which was caused by the physician's negligence. In fact, the employee's common-law rights in said respect are specifically preserved to him. Sec. 3301, R. S. 1929. (3) The defendant, in his capacity as physician, has no liabilities under the act; and having no liabilities under the act, he can claim no rights or immunities thereunder. If the liabilities of a party is excluded from the scope and purview of the Compensation Act such liability must necessarily be determined by the rules of the common law as they have been left unaffected by the act. Langston v. Selden-Breck Const. Co., 37 S.W.2d 477; Clark v. Monarch Engineering Co., 248 N.Y. 107; Corbett v. Starrett Bros., 143 A. 452; Cermak v. Milwaukee Air Power Pump Co., 192 Wis. 44, 211 N.W. 354; Foglio v. Chicago, 229 Ill.App. 472; Sylcox v. Lead Co., 38 S.W.2d 497. (4) A liberal construction of the statute to which the employee is entitled, leads to the conclusion that it was not the intention of the Legislature to place exclusive liability on the employer and thus grant immunity to others who are responsible for the employee's injuries. Parchefsky v. Kroll Bros., 196 N.E. 308; Hoehn v. Schenck, 223 N.Y.S. 418; White v. Matthews, 223 N.Y.S. 415; Greenstein v. Fornell, 143 Misc. 880; Smith v. Golden State Hospital, 111 Cal.App. 667; Hoffman v. Houston Clinic, 41 S.W.2d 134; Pedigo & Pedigo v. Croom, 37 S.W.2d 1074. (a) A rule of statutory construction is that an existing common-law remedy is not to be taken away by a statute unless by direct enactment or necessary implication. King v. Viscoloid Co., 219 Mass. 425; Melody v. Reab, 4 Mass. 471; Commonwealth v. Rumford Chem. Works, 16 Gray, 231; Commonwealth v. Beck, 187 Mass. 15. (b) The common law is not repealed if there is no repugnancy between it and the statute, and it does not appear that the Legislature intended to cover the whole subject. Raper v. Lusk, 192 Mo.App. 378, 181 S.W. 1032; State v. Dalton, 134 Mo.App. 519, 114 S.W. 1132. (c) The law does not favor repeals by implication, and a legislative intent to do so is not presumed, and such repeal will not be adjudged unless necessary or in obedience to an obvious legislative intent. State v. Dalton, 134 Mo.App. 519, 114 S.W. 1132; Davidson v. Schmidt, 124 S.W. 552.

Woodward & Evans for respondent.

(1) Where a party has accepted satisfaction in full, from whatever source it may come, the law will not permit him to recover again for the same injuries. And, even though different persons may be severally liable, full recovery and satisfaction against one constitutes a bar to recovery against the others. Neal v. Curtis Mfg. Co., 328 Mo. 389, 41 S.W.2d 556; Gerber v. Kansas City, 311 Mo. 48, 277 S.W. 564; Myers v. Kennedy, 306 Mo. 268, 267 S.W. 815; Abbott v. Senath, 243 S.W. 641; Dulaney v. Buffum, 173 Mo. 1, 73 S.W. 125; Paine v. Wyatt, 251 N.W. 78. (2) At common law a wrongdoer who was liable for the original injuries was also responsible for the damages accruing through negligent treatment or aggravation of the injuries. Restatement of the Law of Torts, sec. 457; Hughes v. Maryland Cas. Co., 76 S.W.2d 1103; Elliott v. Kansas City, 174 Mo. 554, 74 S.W. 619; Smith v. Rys. Co., 208 Mo.App. 139, 232 S.W. 261; Scholl v. Grayson, 147 Mo.App. 652, 127 S.W. 415; Parchefsky v. Kroll, 267 N.Y. 410, 196 N.E. 308. (3) Under Workmen's Compensation Laws an employer is liable, not only for the original injuries sustained by the employee, but also for any aggravation thereof resulting from malpractice of the attending physician. Sarber v. Insurance Co., 23 F.2d 434; Wingate v. Laundry, 123 Neb. 844, 244 N.W. 635; Gauvin's Case, 132 Me. 145, 167 A. 860; Overbeck v. Nex, 261 Mich. 156, 246 N.W. 196; Tutino v. Ford Motor Co., 168 A. 749. (4) The Missouri Workmen's Compensation Law grants certain rights to the employee and declares them exclusive of all other rights, at common law or otherwise. R. S. 1929, sec. 3301; Holder v. Elms Hotel Co., 92 S.W.2d 620; Sharp v. Produce Co., 226 Mo.App. 189, 47 S.W.2d 242. It is a general rule of law that where a statute creates a new right and prescribes a remedy the statutory remedy is exclusive. Chandler v. Railroad Co., 251 Mo. 600, 158 S.W. 35. (5) Where the employee has been awarded full compensation for his injuries and disability, including aggravation caused by the negligent treatment thereof, he cannot maintain a separate action at law to recover again from the negligent physician. Roman v. Smith, 42 F.2d 931; Sarber v. Insurance Co., 23 F.2d 434; Wesley v. Allen, 235 Ill.App. 322; Paine v. Wyatt, 251 N.W. 78; Vatalaro v. Thomas, 262 Mass. 383, 160 N.E. 269; McDonald v. Employers Liability Co., 192 N.E. 608; Parchefsky v. Kroll, 267 N.Y. 410, 196 N.E. 308; Hoover v. Globe Indemnity Co., 202 N.C. 655, 163 S.E. 758; Polucha v. Landes, 60 N.D. 159, 233 N.W. 264; Revell v. McCaughan, 162 Tenn. 532, 39 S.W.2d 269; Kirby Lbr. Co. v. Ellison, 270 S.W. 920; Ross v. Erickson Const. Co., 89 Wash. 634, 155 P. 153; Noll v. Utilities Co., 224 Ala. 33, 138 So. 411; Markley v. White, 32 P.2d 716; Hinkelman v. Steel Corp., 171 S.E. 538.

Bradley, C. Ferguson, and Hyde, CC., concur.

OPINION

BRADLEY

This is a common-law action to recover damages for alleged malpractice of the defendant, who is a physician and surgeon, practicing in St. Louis, Missouri. The trial court sustained defendant's motion for a judgment on the pleadings, entered judgment accordingly and plaintiff appealed.

Plaintiff alleged that in an accident, March 12, 1930, his right arm, shoulder and wrist were injured and that he employed defendant to treat him; that defendant was negligent in the treatment and that as a result of the alleged negligent treatment plaintiff's arm, wrist and shoulder grew "permanently stiff and plaintiff has thereby lost the use of same and the same has been left in a deformed condition." Plaintiff asked judgment for $ 50,000. In view of the issue presented it is not necessary to say more of the petition.

In the answer defendant alleged that at the time of the accident mentioned in plaintiff's petition, plaintiff was in the employ of the Carter Carbureter Company; that plaintiff and his employer were operating under the terms and provisions of the Missouri Workmen's Compensation Act; that plaintiff on March 12, 1930, sustained accidental injuries "arising out of and in the course of his employment and thereupon became and was entitled to compensation; that as a part of said compensation defendant was employed by plaintiff's employer and its insurer to render medical and surgical treatment to plaintiff for and on account of said accidental injuries;" that all the treatment rendered by defendant was at the request and direction of plaintiff's employer and the insurer; that he did not treat plaintiff as a private patient and that he was not negligent in the treatment; that thereafter plaintiff filed a claim for compensation and that the claim was heard before the Compensation Commission; that the commission made its final award "whereby plaintiff was allowed compensation based upon the full extent of his disability; that said award was made after defendant had completed whatever treatment he rendered to plaintiff." Defendant further alleged "that the very injuries and disability for which plaintiff received compensation under said final award are the same injuries and disability for which plaintiff now seeks recovery in this case; that the compensation allowed plaintiff in the award of the Compensation Commission has been fully paid and that by reason of said payments plaintiff has received full and complete satisfaction for said alleged injuries and disability and is fully and forever barred from recovering in this action."

In the reply plaintiff admits that at the time of the accident, March 12, 1930, he and his employer were operating under the Missouri Workmen's Compensation Law; admits that the accident arose out of and in the course of his employment and that he was entitled to and received compensation and "admits that as a part of said compensation that defendant rendered medical and surgical treatment to plaintiff for and on account of said accidental injuries, and that all of the treatment received by plaintiff was at the request and direction of said employer and its insurer, and that plaintiff was not treated as a private patient; admits that thereafter a claim for compensation was filed by plaintiff on account of his disability and that the Compensation Commission rendered its final award whereby plaintiff was allowed compensation based upon the disability suffered therefrom, and that said award was made after the defendant had completed treatment rendered to plaintiff."

Further replying, plaintiff states "that he has not been compensated for the pain and suffering,...