Hughes v. Maryland Cas. Co.

• Decision Date: 13 November 1934
• Docket Number: 18129.
• Citation: 76 S.W.2d 1101,229 Mo.App. 472
• Parties: C. E. HUGHES, RESPONDENT, v. MARYLAND CASUALTY CO., APPELLANT
• Court: Kansas Court of Appeals

76 S.W.2d 1101

229 Mo.App. 472

C. E. HUGHES, RESPONDENT, v. MARYLAND CASUALTY CO., APPELLANT

No. 18129

Court of Appeals of Missouri, Kansas City

November 13, 1934

Rehearing Denied Dec. 3, 1934.

Appeal from Circuit Court of Grundy County.--Hon. A. G. Knight Judge.

Action by C. E. Hughes against Maryland Casualty Company. From an adverse judgment, defendant appeals, and plaintiff moved to dismiss the appeal.

Motion to dismiss appeal overruled and judgment reversed.

George E. Woodruff for respondent.

Harris & Koontz and H. J. Bain for appellant.

OPINION

BLAND, J.

This is a petition for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 1050. Defendant has appealed.

The facts show that plaintiff was injured on March 21, 1930, by the accidental splashing of mortar into his left eye. The accident occurred while he was working on a hotel building being erected by his employer, the Hoffman Construction Company, in Trenton. On or about June 4, 1930, plaintiff filed a claim with the Workmen's Compensation Commission against his employer and the defendant, who is his employer's insurance carrier. The claim, dated May 31 1930, was founded on the injury to plaintiff's eye. It was set for hearing on July 21 and the commission awarded plaintiff disability of $ 12 per week from May 28, 1930, on account of an aggravation of a pre-existing trachoma. The physicians who were treating plaintiff reported that need for medical aid was no longer necessary after January 28, 1931. Defendant paid the compensation allowed but plaintiff refused a draft marked "final payment" which covered the period from February 11, 1931, to February 17, 1931, claiming that plaintiff had not recovered from his injuries. At the request of the plaintiff the matter was set down for hearing before the commission and on May 16, 1931, a final award was made in which plaintiff was allowed weekly compensation in the sum of $ 18 per week for thirty-eight and three-sevenths weeks beginning May 28, 1930, and terminating as of January 31, 1931. The commission found that the disability caused by the accident did not extend beyond January 31, 1931, and that any disability suffered by the employee after January 31 1931, resulted from causes independent of his employment.

Thereafter, defendant paid plaintiff the balance of the award made by the commission and plaintiff signed the final report and receipt for compensation. The receipt recited that it was in full release and discharge of the defendant, as well as the employer, of all liability under the Workmen's Compensation Act, by reason of the accident.

After plaintiff received the injury his employer and the insurer furnished medical and surgical treatment, as provided by Section 3311, Revised Statutes 1929, and it is for the malpractice of the physicians and surgeons, resulting in a claim of aggravation of the original injury received, that plaintiff complains of in this suit.

The petition alleges that the accident produced or rendered active a condition known as trachoma to plaintiff's eyes, which theretofore caused him no damage; that defendant undertook the treatment of plaintiff's eyes and employed certain physicians for that purpose; that defendant, by its servants and agents, negligently failed to give plaintiff as frequent treatments as his condition demanded; that they failed to give him the proper directions as to the care of his eyes; that they permitted him to work in rooms filled with dust and fumes and to work in the sun and wind and under conditions that prevented and hindered the cure of plaintiff's condition; that they negligently operated on plaintiff's eyes, negligently discharged plaintiff as cured when he was not cured, assuring him that the medicine they had given him would effect a complete cure.

The answer sets up the proceedings before the compensation commission and pleads the temporary and final award of the commission; that the amount awarded was fully paid by the defendant; that the commission had exclusive jurisdiction to pass upon the claim set out in plaintiff's petition and that plaintiff submitted his claim to the commission and accepted its award. It sets up the release signed by plaintiff. It then pleads due care in the selection of the physicians who treated plaintiff and that they were independent contractors.

It is insisted by the defendant that the court erred in refusing, at the close of all of the testimony, to give its instruction in the nature of a demurrer to the evidence. In this connection it contends that the proximate cause of the damage, if any, done to plaintiff by the physicians who treated him was the original injury, and that such damage formed a part of the compensation received by plaintiff; that, in any event, none but the compensation commission had jurisdiction over the character of claims sued upon by the plaintiff in this case.

It is a well established principle of the common law that if one is injured by the negligence of another and these injuries are aggravated by the negligence of a physician employed by the person doing the injury or by the injured person, in the exercise of ordinary care, the negligence of the wrongdoer, in causing the original injury, is regarded as the proximate cause of the damage flowing from the negligent treatment of the physician. [Smith v. K. C. Rys. Co., 208 Mo.App. 139; Scholl v. Grayson, 147 Mo.App. 652, 127 S.W. 415; Elliott v. Kansas City, 174 Mo. 554, 74 S.W. 617; Paine v. Wyatt (Iowa), 251 N.W. 78; White v. Matthews, 223 N.Y.S. 415; Gunnison v. Indus. Comm., 73 Utah 535, 540, 541, 275 P. 777; Polucha v. Landes (N. D.), 233 N.W. 264; McDonough v. Natl. Hos. Assn., 134 Ore. 451, 460, 294 P. 351; Mier v. Yoho (W. Va.), 171 S.E. 553.]

While the theory of the compensation is not recovery based upon negligence or wrongful act of the employer but wholly upon the fact of the employment, yet, the overwhelming weight of authority in this country is to the effect that in compensation cases the malpractice of the physician selected by the employer to treat the injuries of the employee is directly traceable to and the proximate result of the primary injury for which the injured workman is being treated and if his injuries are aggravated by the negligence of the physician compensation for such aggravation must be procured in the proceedings provided for in the act. [Hinkelman v. Wheeling Steel Corp. (W. Va.), 171 S.E. 538; Paine v. Wyatt, supra; Markley v. White (Okla.), 32 P.2d 716; Booth v. Cook, 79 Okla. 280, 193 P. 36; Brown v. Sinclair, 86 Okla. 143, 206 P. 1042; Nall v. Ala. Utilities Co. (Ala.), 138 So. 411; Tenn. Coal Co. v. Shelby (Ala.), 106 So. 499; Wingate v. Evans Model Laundry, 123 Neb. 844, 848, 244 N.W. 635; Revell v. McCaughan, 162 Tenn. 532, 39 S.W.2d 269; Hennig v. Crested Butte Anthracite Min. Co. (Colo.), 21 P.2d 1115; Gauvin's Case (Maine), 167 A. 860; Atamian's Case (Mass.), 163 N.E. 194; Vatalaro v. Thomas (Mass.), 160 N.E. 269; White v. Matthews, supra; Roman v. Smith, 42 F.2d 931; Sarber v. Aetna Life Ins. Co., 23 F.2d 434; Spelman v. Pirie, 233 Ill.App. 6; Lincoln Park Coal Co. v. Indus. Comm., 317 Ill. 302, 148 N.E. 79; Pawlak v. Hayes, 162 Wis. 503, 156 N.W. 464; Oleszek v. Ford Motor Co., 217 Mich. 318, 186 N.W. 719; Polucha v. Landes supra; McDonough v. Natl. Hos. Assn., supra; Ross v. Erickson, 89 Wash. 634, 155 P. 153; Kirby Lbr. Co. v. Ellison (Tex.), 270 S.W. 920.] In the case of Hoffman v. Houston Clinic et al. (Tex.), 41 S.W.2d 134, the holding is to the contrary.

Many of the cases just cited hold that suit cannot be maintained against the physician, even, but we are not concerned with a suit of that kind, the case now before us being against the insurance company, alone.

Our statute, Section 3301, Revised Statutes 1929, provides, in part, as follows:

"The rights and remedies herein granted to an employee, shall exclude all other rights and remedies of such employee, his wife, her husband, parents, personal representative, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter."

It is therefore, apparent that if plaintiff did or could have recovered in the proceeding before the compensation commission for the damages done him for the alleged malpractice of the physicians, he cannot maintain this suit. We conclude that, under the authorities last cited jurisdiction of this proceeding is in the compensation commission.

The statutes of the various states, from whose courts we have cited cases, vary somewhat in their provisions, but the foundation of all of these decisions is the common law rule stated above carried into the compensation proceedings.

Plaintiff attempts to distinguish the cases cited on the ground that the laws of those various states are different from that of Missouri. It is claimed that the laws of some of these states provide for an election after the injury by the employee and that an election to sue under the Compensation Act operates as an assignment of the employee's cause of action against a third person to the employer, whereas, Section 3300 of the Missouri statute, requires the election before the accident and by virtue of Section 3309 it does not operate as an assignment but leaves his common law rights open to the employee, except as to compensation already paid. However, this difference in the statutes goes only to the question of the right to sue a negligent third person. The provisions of the statutes of the foreign states alluded to are not even mentioned in some of the opinions we have cited from those states and where they are mentioned emphasis is placed upon the fact that the...