Lading v. City of Duluth, 23,044.
| Decision Date | 01 December 1922 |
| Docket Number | No. 23,044.,23,044. |
| Citation | 153 Minn. 464 |
| Court | Minnesota Supreme Court |
| Parties | CONRAD LADING v. CITY OF DULUTH.<SMALL><SUP>1</SUP></SMALL> |
John B. Richards and Charles C. Teare, for relator.
McHugh & O'Donnell, for respondent.
Certiorari to review the judgment of the State Industrial Commission in proceedings under the Workmen's Compensation Act.
The facts are not in dispute. Plaintiff in the proceeding was a policeman in the service of the city of Duluth, and had been such for some 6 years. While in the performance of his duties on the night of October 2, 1921, he was shot in the arm by a person he was attempting to arrest on the charge of murder. The person escaped, and plaintiff, after advising police headquarters of his injury over the phone, was taken to a hospital in the city ambulance, where he received necessary attention, remaining until able to be about again. The city employs a physician for the benefit of its employes and for occasions of emergency whose duty requires attention to cases of this kind when called or informed of the necessity therefor. His compensation, on salary basis, is paid wholly by the city. He was subject to the call of plaintiff to treat the injury in question and would have responded had request been made. Plaintiff, however, preferred a physician of his own selection, and to that end called a physician not in the service of the city. Plaintiff in this proceeding seeks to recover the reasonable value of the services of the physician thus employed. The city resisted allowance on the ground that, since the regular city physician was subject to the call of plaintiff, to his knowledge, and having elected to secure the services of another, he is not entitled to reimbursement; in short, that plaintiff fails to bring the facts within the terms of section 19, p. 103, chapter 82, Laws 1921, wherein provision for medical treatment in such cases is made.
1. This contention must in part at least be sustained. The statute referred to and which controls the issue provides that the employer, the city in this case, shall furnish the injured employe such medical, surgical and hospital treatment as may be reasonably required at the time of the injury and during the disability thus created, not exceeding 90 days or $100 in value, "and in case of his inability or refusal seasonably to do so, the employer shall be liable for the reasonable expense incurred by or on behalf of the employe in providing the same."
The statute is plain and unambiguous, and imposes upon the employer the obligation to furnish medical aid to an injured employe, to the extent there stated, and, if he is unable or refuses to do so, imposes liability for the reasonable value of the services rendered by a physician employed by or on behalf of the injured employe. To justify a recovery of the reasonable value of the services of a physician called by the employe, it must appear either that the employer was unable to furnish one or that he refused to do so. Upon this the statute leaves no doubt, but the requirements thereof were not met by plaintiff in this case. There can be no claim that the city was unable to furnish the needed medical attention. A physician was in its employ for the purpose of responding to cases of the kind, and his services were available to plaintiff. Neither is there any showing of a request by the plaintiff for his services, and no occasion was presented for volunteer action on his part. There was therefore no refusal by the city to furnish the necessary medical attention. Plaintiff voluntarily chose his own physician, on the apparent theory that he had the right to do so at the expense of the city. He proceeded advisedly in the matter, for his injury was not of a character to render him mentally incompetent.
2. It follows then that plaintiff is not entitled to recover the reasonable value of the services of the physician so called. But we are of opinion that the statute should not be construed to impose upon the employe the unqualified obligation to accept the physician selected by the employer, or forfeit the right of reimbursement there given. It often happens, a situation perhaps more or less general, that the employe has a family physician to whom he prefers to turn in case of injury or sickness, rather than to accept the services of another with whom he has no acquaintance or in whom perchance he has no confidence. In that situation he should have the option or unquestioned right to chose his medical attendant, or accept the one tendered him by the employer, but within the limits of liability on the part of the employer imposed by the statute. The statute contains no language unconditionally requiring the latter to accept the physician tendered him or relinquish the right of reimbursement altogether, and we construe it to give him that option; and when exercised in good faith to entitle him to reimbursement to the extent provided by the statute. The fact that the employer in this case is a municipal corporation and employs a physician for all such cases, paying him a fixed salary, cannot alter the construction given the statute, and be made to apply to different employers in a different degree of liability. It is susceptible of one construction, applicable alike to all employers, municipal corporation or individual.
It follows that plaintiff is entitled to reimbursement for the services of the physician called by him to the extent of $100 and no more.
3. Plaintiff in the proceeding sought to recover, in addition to the services of his physician, attorneys' fees and the cost of an X-ray of his arm, taken to aid in determining the nature and character of his injury. The commission refused to allow the claims, and he assigns the ruling as error, and contends that the decision of the commission should be modified in this court by the allowance of those items. The contention is not sustained.
Plaintiff is the respondent in this court, and no proceeding by him presents the cause here for review. His effort in the manner stated to have such review is not in harmony with settled law of appellate procedure in this state. The practice permitting cross-assignments of error, in force and applied in some jurisdictions (8 Enc. Pr. 644) has never been adopted in this state. Under our procedure the appellant in appeal cases, and the relator in certiorari, may alone assign errors or otherwise complain of adverse rulings on the trial of the action or proceeding under review. Edgerton v. Jones, 10 Minn. 341 (427); New v. Wheaton, 24 Minn. 406; State v. Northern Pacific Ry. Co. 99 Minn. 280, 109 N. W. 238, 110 N. W. 975; 1 Dunnell, Minn. Dig. § 360.
Plaintiff is therefore without the right to challenge the action of the commission in the respect stated, unless the right be conferred by the provisions of the act creating the industrial commission. Chapter 423, p. 652, Laws 1921. Plaintiff contends that the right is given by section 61 of that act. In that we are unable to concur. It is clear that the legislature did not intend by that act to establish the practice of...
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