Mier v. Yoho

• Decision Date: 31 October 1933
• Docket Number: C. C. No. 483.
• Court: West Virginia Supreme Court
• Parties: MIER. v. YOHO et al.

171 S.E. 535

MIER.

v.YOHO et al.

C. C. No. 483.

Supreme Court of Appeals of West Virginia.

Oct. 31, 1933.

Syllabus by the Court.

1. "It is a general rule that if an injured person uses ordinary care in selecting a physician * * *, the law regards an injury resulting from mistakes of the physician or his want of skill, or a failure of the means employed to effect a cure; as a part of the immediate and direct damages which naturally flow from the original injury." 8 Ruling Case Law, p. 449.

2. An injured person's unqualified release of tort-feasor from liability for personal injuries, which release was made after receiving treatment of a physician for such injuries, prevents recovery by injured person of the physician for alleged negligent treatment.

Case Certified from Circuit Court, Marshall County.

Action by Julio Mier, an infant, etc., against S. F, Yoho and another. The circuit court overruled demurrers to special pleas filed by the defendants to the plaintiff's declaration, and certified its ruling for review.

Ruling affirmed.

Everett F. Moore and Evans & Evans, all of Moundsville, for plaintiff.

Riley & Riley, of Wheeling, and Martin Hrown, of Moundsville, for defendants.

MAXWELL, President.

This is a certification from the circuit court of Marshall County. Special pleas were filed by defendants to plaintiff's declaration. The trial court overruled demurrers to the special pleas and certified here the question of the sufficiency of the pleas.

Plaintiff sues as guardian of his infant son who was struck by a truck belonging to Nassif Candy Company and sustained a compound fracture of the right femur. He was treated for his injury by defendants, physicians, at the solicitation of his father, later appointed guardian. A compromise settlement was made by the guardian with the candy company and a release executed by him to it.

Plaintiff seeks by this action to recover damages of defendants for their alleged negligent and unskillful treatment of the injury of his ward, alleging that the bone was not properly set; that it has failed to unite properly; that the injured leg is shorter than the other, and that as a consequence "it is necessary that said bone be again broken and properly reset."

Defendants, by their special pleas, aver that the release executed to the candy company, by plaintiff's guardian, in pursuance of an order of court, entered under Code 1931, 44-10-14, likewise releases and discharges them from all liability for negligence charged to them.

The specific question for our determination therefore is this: Does a release of one whose negligence occasions physical injury to a person also release a physician, chosen with due care by the injured person, or one acting for him, whose negligent treatment aggravates tne injury so as to constitute a bar to an action by the injured person against the physician?

The plaintiff contends that the cause of action against the tortfeasor who first negligently injured his ward is separate and distinct from the cause of action against the physician who is alleged to have aggravated the injury because of unskillful and negligent; treatment, and that therefore recovery or settlement with the first tort-feasor is no bar to a subsequent action against the other. The following cases are cited: Parkell v. Fitzporter, 301 Mo. 217, 256 S. W. 239, 29 A. L. R. 1305; Viita v. Dolan. 132 Minn. 128, 155 N. W. 1077, L. R. A. 1916D, 644, Ann. Cas. 1917E, 678; and Staehlin v. Hochdoerfer (Mo. Sup.) 235 S. W. 1060.

It is the contention of defendants that a recovery cannot be had of them because their alleged maltreatment of plaintiff's injury is a proximate result of the negligence of thecandy company and that inasmuch as plaintiff has released the candy company they are likewise released.

Most of the authorities support the latter proposition.

The almost universal rule follows: "It is a general rule that if an injured person uses ordinary care in selecting a physician * * *, the law regards an injury resulting from mistakes of the physician or his want of skill, or a failure of the means employed to effect a cure, as a part of the immediate and direct damages which naturally flow from the original injury." 8 Ruling Case Law, p. 449. "The law regards the negligence of the one who caused the original injury as the proximate cause of damages flowing from the negligence of the physician, and holds him liable therefor." Keown v. Young, 129 Kan. 563, 283 P. 511, 514. Other cases in accord: Milks v. Mclver, 147 Misc. 297, 263 N. Y. S. 595; Fisher v. Ry. & Light Co., 173 Wis. 57, 180 N. W. 269; Suelzer v. Carpenter, 183 Ind. 23, 107 N. E. 467; Dewhirst v. Leopold, 194 Cal. 424, 229 P. 30; Staehlin v. Hochdoerfer, supra; O'Quinn v. Alston, 213 Ala. 346, 104 So. 653, 39 A. L. R. 1263; Yarbough v. Hines, 112 Wash. 310, 192 P. 886; Seeton v. Town of Dunbarton, 73 N. H. 134, 59 A. 944; Reed v. City of Detroit, 108 Mich. 224, 65 N. W. 967; Gray v. Ry. Co., 215 Mass. 143, 102 N. E. 71. This is true even though greater medical skill might have minimized the injury. Wyatt v. Russell, 308 Pa. 366, 162 A. 256.

The alleged unsatisfactory results of the defendants' treatment of plaintiff's ward being deemed a proximate result of the original injury, and the...