Henderson v. Scott

• Decision Date: 16 July 1943
• Docket Number: 6840.
• Citation: 10 N.W.2d 490,72 N.D. 616
• Parties: HENDERSON v. SCOTT et al.
• Court: North Dakota Supreme Court

10 N.W.2d 490

72 N.D. 616

HENDERSON v. SCOTT et al.

No. 6840.

Supreme Court of North Dakota

July 16, 1943

Syllabus by the Court.

1. The fact that a claimant to compensation, who has a right to share in the workmen's compensation fund, is entitled to have the bureau furnish him with necessary medical services does not relieve him from liability for the reasonable value of the services rendered him by a physician employed by himself and the bureau, the claimant being liable to the physician because of his own contract.

2. A physician may not maintain an action against the workmen's compensation bureau to recover for the value of services he rendered to one entitled to share in the workmen's compensation bureau, as the bureau is not a legal entity subject to suit. Watland et al. v. North Dakota Workmen's Compensation Bureau, 58 N.D. 303, 225 N.W. 812 followed.

Hyland & Foster, of Bismarck, for respondent.

Alvin C. Strutz, Atty. Gen., and P. B. Garberg, Asst. Atty. Gen for appellants.

BURR, Judge.

Plaintiff brings an action against the defendants to recover for the reasonable value of services which he claims to have rendered the defendant Scott under a contract made with the defendants.

The complaint alleges that defendant Scott was an employer insured with the workmen's compensation bureau; that he was injured in the course of his work; that the bureau acknowledged his right to share in the compensation fund; that both Scott and the bureau employed the plaintiff to render medical services to Scott; that the services were worth a thousand dollars, and no part of this has been paid except the sum of $250 paid by the bureau.

The issues involved come before us upon separate demurrers. Each demurrer sets forth "that the Court has no jurisdiction of the subject of the action. That the complaint does not state facts sufficient to constitute a cause of action against this defendant."

The trial court overruled each demurrer and the defendants appeal.

It appears to be the theory of the defendant Scott that because of his contract with the bureau, the liability for medical services became the liability of the bureau alone, and therefore no judgment can be rendered against him.

This position can not be sustained. Even though he be entitled to share in the compensation fund, and therefore it was the duty of the bureau to furnish him medical service, this does not relieve him from his own personal liability. The complaint alleges that Scott made a contract with the plaintiff for medical services. It shows the reasonable amount of the services and the amount paid. For the purposes of the demurrer, the allegations are admitted to be true. Clearly the complaint states a cause of action against Scott.

While the framework of the compensation law of South Dakota, SDC 64.0101 et seq., Comp. Laws Supp.1925, § 396a1 et seq., is somewhat different from ours, Comp.Laws Supp.1925, § 396a1 et seq., in important particulars, nevertheless the holding of that court in Hannon v. Interstate Power Co., 65 S.D. 493 275 N.W. 358, 359, is applicable to the situation here. A physician, even under our law, is not compelled to perform medical services for a claimant. He need not agree to do so either with the claimant or with the bureau. He is a third and independent party, not legally bound to furnish services for either. He may make such legal contract as he sees fit and therefore he may contract with the claimant without reference to the bureau. In the case cited, the action to recover medical services was not brought against the claimant. It was an action against the employer, but the employer set forth that it "was operating under the Workmen's Compensation Law *** and that the industrial commissioner had exclusive jurisdiction." The court points out that "physicians are neither employers [n]or employees within the meaning of the act and are not within the class of persons who can either elect or refuse to come under the provisions of the law." While under our statute there is no liberty of election, nevertheless physicians are not one of those who must render service. If defendant Scott employed the plaintiff to furnish medical services for him he must pay the reasonable value of these services when no express agreement was made as to fees, and this irrespective of what amount the bureau may allow for medical services. Therefore, Scott's demurrer to the complaint was properly overruled.

In holding thus on the demurrer interposed by Scott, we are not determining any right the plaintiff may have to compel payment out of the workmen's compensation fund. This matter is not involved in determining the Scott demurrer.

The demurrer interposed by the bureau sets forth that "the court has no jurisdiction of the subject of the action" and that the complaint doesn't state facts sufficient to constitute a cause of action.

The suit against the bureau can not be maintained. As pointed out in Watland et al. v. North Dakota Workmen's Compensation Bureau, 58 N.D. 303, 225 N.W. 812, "the Workmen's Compensation Bureau, as organized and existing under chapter 162 of the Session Laws of 1919, is not a legal entity subject to suit, and a suit against it is in legal effect a suit against the state."

In this case cited, the complaint was challenged by a demurrer "as to the jurisdiction of the person of the defendant and the subject of the action"-also "on the ground that it did not state facts sufficient to constitute a cause of action." There is not much variance between the demurrer in the case at bar and the one interposed in the case cited. The variation in language is not material as we view it. In the case cited, the subject matter of the complaint was an attempt to recover damages for an alleged tort and the case was decided on the theory that the state had not consented to be sued in tort and therefore the action could not be maintained, even as against the state.

Nevertheless, this court shows that any suit against the bureau is in effect a suit against the state; and that the state has consented to be sued in an action arising upon contract but not tort and so that action could not be maintained against the state; as additional reason for showing the bureau itself can not be sued, this court points out distinctly the purpose for which the bureau is organized and for which the fund must be disbursed. Though the cited case was concerned primarily with an action in tort, it directly affected the fund. If successful, it would subject the fund to a debt not contemplated by the statute, and therefore this statement made therein is applicable to the case at bar: "It might result in the dissipation of the fund raised for a particular purpose by requiring it to be applied in the liquidation of liabilities in favor of others than those for whose benefit the fund is created. Either that, or it would impose upon the general taxpayers a liability for official neglect that is equally grievous regardless of the governmental department in which the neglect occurs."

However, in support of our holding there that the bureau "is not a legal entity subject to suit," we cite the general principle laid down in Wirtz et al. v. Nestos et al., 51 N.D 603, 200 N.W. 524, that where the state is...