Makarenko v. Scott, (No. 10013)

CourtSupreme Court of West Virginia
Writing for the CourtHaymond, President:
Citation132 W.Va. 430
Docket Number(No. 10013)
Decision Date08 March 1949
PartiesAlexander Makarenko v. W. W. Scott, et al.

132 W.Va. 430

Alexander Makarenko
v.
W. W. Scott, et al.

(No. 10013)

Supreme Court of Appeals of West Virginia.

Submitted January 18, 1949.
Decided March 8, 1949.


[132 W.Va. 430]

1. Workmen's Compensation

When a person sustains a personal injury, caused by the negligence of a wrongdoer, or the injury received is such as entitles the injured person to an award of compensation un-

[132 W.Va. 431]

der the workmen's compensation law of this State, and the injured person exercises reasonable care in the selection of a competent physician and hospital to treat him for such injury, which is aggravated by the negligent or unskillful treatment rendered by them, he can not, as a general rule, maintain an action against such physician or hospital for damages which result from the aggravation of the original injury. In each case the law regards the aggravation as a part of the immediate and direct damages which naturally flow from the original injury.

2. Actions

An injured employee who is entitled to, and is paid, an award of compensation from the workmen's compensation fund of this State for an injury to his person, received in the course of and resulting from his employment and caused by his employer who is a subscriber to the fund, can not maintain an action against a physician and a hospital, selected by such injured person to treat his original injury, for damages for the aggravation of such injury which result from their negligent and unskillful treatment when the aggravation of his injury is covered by the award and the expense of such treatment is paid from the workmen's compensation fund.

Error from Circuit Court, Mingo County.

Action of trespass on the case by Alexander Makarenko against W. W. Scott, and others, for damages resulting from allegedly negligent treatment by defendant as a physician and surgeon and as agent of Williamson Memorial Hospital. To review judgment plaintiff appeals.

Affirmed.

Kenna and Lovins, Judges, dissenting.

Townsend & Townsend, Hillis Townsend, T. C. Town- send and W. J. Thompson, for plaintiff in error.

Lant R. Slaven, E. E. Tomlinson, Jr., for defendants in error.

[132 W.Va. 432]

Haymond, President:

In this action of trespass on the case, the plaintiff, Alexander Makarenko, seeks to recover damages from the defendants, W. W. Scott and Williamson Memorial Hospital, a corporation, for personal injury which he claims is the result of negligent and unskillful treatment by the defendant, W. W. Scott, a physician and surgeon acting in his own right and as agent of the defendant, Williamson Memorial Hospital, of an earlier injury received by the plaintiff in a mine accident. The treatment administered to the plaintiff by the defendants occurred during a period of approximately seventy five days in the early part of the year 1943. To the declaration, which is in one count, the defendants filed two special pleas in bar. In defense of the claim these pleas alleged, in substance, that the employer of the plaintiff, the Norfolk and Western Railway Company, and the plaintiff, were subject to the workmen's compensation law of this State, at the time the plaintiff received his original injury in the course of his employment, on January 15, 1943; that the injury of which the plaintiff complains, caused by the treatment administered by the defendants, is an aggravation of his original injury; and that the plaintiff has been fully paid for the original injury, and its aggravation, from the workmen's compensation fund to which his employer was a subscriber at the time of his original injury. It does not appear that the defendants filed a plea of the general issue. A demurrer of the plaintiff to each of the pleas was overruled. The plaintiff did not desire to file any replication to either of the pleas and declined to amend his declaration. Upon these pleadings the Circuit Court of Mingo County, in which the action was instituted, being of the opinion that the pleas set up a complete defense to the claim of the plaintiff, by final judgment entered February 7, 1947, dismissed the action at the cost of the plaintiff. To that judgment the plaintiff obtained a writ of error to this Court.

[132 W.Va. 433]

The material facts, as disclosed by the pleadings, are not in dispute. The plaintiff was employed as a workman in the coal mines of the Norfolk and Western Railway Company, at Chattaroy, in Mingo County, West Virginia. While working for the company, on January 15, 1943, he received an injury in the course of and resulting from his employment which caused a fracture of his left wrist and forearm. He employed the defendants to treat his injury, which they did during a period of approximately seventy five days. At the time, the defendant, Williamson Memorial Hospital, was engaged in the operation of a hospital for the treatment of sick and injured persons, and the defendant, W. W. Scott, was a physician and surgeon, a member of its medical staff, and, as its agent, professionally cared for and treated the plaintiff. When the plaintiff was injured, his employer, Norfolk and Western Railway Company, was a subscriber to the workmen's compensation fund of this State and, after the treatment was administered by the defendants, which resulted in the aggravation of his injury, and of which he complains, the plaintiff was awarded and has been paid compensation from the fund for his injury, including its aggravation, upon the basis of fifteen per cent permanent partial disability. In addition his medical and hospital expenses, in an amount in excess of $290.00, have been paid from the fund. The plaintiff charges that the treatment given him by the defendants was negligent and unskillful and that as a result the fracture did not heal in a normal manner and that it was necessary for other physicians, subsequently employed by the plaintiff, to break and set anew his left forearm in an unsuccessful effort to obtain a correct alignment of the bones of his arm and to remove the deformity caused by the improper treatment administered by the defendants., The plaintiff alleges that he is permanently disabled and that he suffers pain and mental anguish as a result of the negligent treatment of him by the defendants and has sustained damages in the amount of $20,000.00.

[132 W.Va. 434]

It is the contention of the defendants that as the original injury was caused by the employer of the plaintiff, any aggravation of that injury that may have resulted from the treatment furnished by them is, in law, a part of and embraced in the original injury, and as the plaintiff has been paid compensation in full from the workmen's compensation fund for the original injury, including any resulting aggravation, there can be no recovery from them by the plaintiff for any aggravation of his injury that may have been caused by the acts of the defendants of which the plaintiff complains. The plaintiff contends that the defendants are not employers within the meaning of Section 6, Article 2, Chapter 23, Code, 1931, and that for that reason they are not entitled to the immunity from liability which is extended to an employer by that section. The theory upon which the plaintiff seeks recovery is that the aggravation caused by the negligence and the unskillfullness of the defendants in treating his injury constitutes a separate and distinct injury from the one which he received from his employment, and that it gives rise to a separate claim or cause of action.

The question here involved is whether an employee of a subscriber to the workmen's compensation fund of this State, who is injured by his employer in the course of and resulting from his employment, who seeks and obtains the services of a physician and the care of a hospital in the treatment of the injury, and who is paid and accepts compensation in full from the compensation fund for the original injury, as aggravated by the treatment, can recover compensatory damages from the physician and the hospital for aggravation of his injury caused by their negligence and lack of skill in treating the injury.

To support his contention that the defendants are liable, the plaintiff cites and relies upon the decisions of this Court in the cases of Mercer v. Ott, 78 W.Va.

[132 W.Va. 435]

629, 89 S.E. 952; Merrill v. Marietta Torpedo Co., 79 W.Va. 669, 92 S.E. 112, L.R.A. 1917F, 1043; and Tawney v. Kirkhart, 130 W.Va. 550, 44 S.E. 2d 634.

In Mercer v. Ott, 78 W.Va. 629, 89 S.E. 952, this Court held, in Point 3 of the syllabus, that where an employee is killed by an accident arising in the course of and resulting from his employment and a tort-feasor other than his employer is responsible for his death, the right to compensation from the workmen's compensation fund by a dependent of the deceased employee is not lost by a recovery of damages against the third party tort-feasor by the personal representative of the deceased. In that case a workman was an employee of a brick manufacturing company which was a subscriber to the workmen's compensation fund. While at work transferring coal from railroad cars to carts for distribution at the company's plant, and while under a railroad car parked on a siding of the brick company, where he was required to be, the railroad company negligently caused other railroad cars to come in contact with the car the employee was unloading and inflicted the injury which caused his death. The negligence of a third party, not the act of the employer, resulted in his death. An action by the personal representative of the deceased against the railroad company was settled by the payment of $l., 250.00,...

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16 practice notes
  • Fitzgerald v. Fitzgerald, No. 33043.
    • United States
    • Supreme Court of West Virginia
    • November 30, 2006
    ...service of an employer who had fully complied with the requirements of the act." Id. at 523, 138 S.E. at 98; accord Makarenko v. Scott, 132 W.Va. 430, 55 S.E.2d 88 (1949). By eliminating the civil remedy option to seek redress under tort law, the Legislature must have intended to encompass ......
  • State ex rel. Boan v. Richardson, No. 23667
    • United States
    • Supreme Court of West Virginia
    • December 13, 1996
    ...his cause of action against the negligent employer and this remedy of compensation is an exclusive remedy.") citing Makarenko v. Scott, 132 W.Va. 430, 55 S.E.2d 88 (1949), overruled on other grounds, Jones v. Laird Foundation, Inc., 156 W.Va. 479, 195 S.E.2d 821 (1973), and Thornton v. Char......
  • Thornton v. Charleston Area Medical Center, No. 13484
    • United States
    • Supreme Court of West Virginia
    • February 18, 1975
    ...case of Mier v. Yoho, 114 W.Va. 248, 171 S.E. 535 (1933); Conley v. Hill, 115 W.Va. 175, 174 S.E. 883 (1934); and Markarenko v. Scott, 132 W.Va. 430, 55 S.E.2d 88 (1949) are overruled insofar as those decisions adopted a conclusive presumption that an injured person's unqualified release of......
  • Rine By and Through Rine v. Irisari, No. 20459
    • United States
    • West Virginia Supreme Court
    • June 11, 1992
    ...treatment by a physician of the original injury would not have occurred if there had been no original injury[.]" Makarenko v. Scott, 132 W.Va. 430, 441, 55 S.E.2d 88, 93-94 (1949), overruled on another point, syl. pt. 4, Thornton v. Charleston Area Medical Center, 158 W.Va. 504, 213 S.E.2d ......
  • Request a trial to view additional results
16 cases
  • Fitzgerald v. Fitzgerald, No. 33043.
    • United States
    • Supreme Court of West Virginia
    • November 30, 2006
    ...service of an employer who had fully complied with the requirements of the act." Id. at 523, 138 S.E. at 98; accord Makarenko v. Scott, 132 W.Va. 430, 55 S.E.2d 88 (1949). By eliminating the civil remedy option to seek redress under tort law, the Legislature must have intended to encompass ......
  • State ex rel. Boan v. Richardson, No. 23667
    • United States
    • Supreme Court of West Virginia
    • December 13, 1996
    ...his cause of action against the negligent employer and this remedy of compensation is an exclusive remedy.") citing Makarenko v. Scott, 132 W.Va. 430, 55 S.E.2d 88 (1949), overruled on other grounds, Jones v. Laird Foundation, Inc., 156 W.Va. 479, 195 S.E.2d 821 (1973), and Thornton v. Char......
  • Thornton v. Charleston Area Medical Center, No. 13484
    • United States
    • Supreme Court of West Virginia
    • February 18, 1975
    ...case of Mier v. Yoho, 114 W.Va. 248, 171 S.E. 535 (1933); Conley v. Hill, 115 W.Va. 175, 174 S.E. 883 (1934); and Markarenko v. Scott, 132 W.Va. 430, 55 S.E.2d 88 (1949) are overruled insofar as those decisions adopted a conclusive presumption that an injured person's unqualified release of......
  • Rine By and Through Rine v. Irisari, No. 20459
    • United States
    • West Virginia Supreme Court
    • June 11, 1992
    ...treatment by a physician of the original injury would not have occurred if there had been no original injury[.]" Makarenko v. Scott, 132 W.Va. 430, 441, 55 S.E.2d 88, 93-94 (1949), overruled on another point, syl. pt. 4, Thornton v. Charleston Area Medical Center, 158 W.Va. 504, 213 S.E.2d ......
  • Request a trial to view additional results

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