Nall v. Alabama Utilities Co.

• Decision Date: 17 December 1931
• Docket Number: 4 Div. 584.
• Parties: NALL v. ALABAMA UTILITIES CO.
• Court: Alabama Supreme Court

138 So. 411

224 Ala. 33

NALL v. ALABAMA UTILITIES CO.

4 Div. 584.

Supreme Court of Alabama

December 17, 1931

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

Action for damages by A. E. Nall against the Alabama Utilities Company. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

O. S Lewis, of Dothan, for appellant.

A. R Powell, of Andalusia, for appellee.

BROWN J.

This is a common-law action on the case by plaintiff to recover damages resulting from the malpractice of a physician employed by the defendant to treat plaintiff for injuries received by the plaintiff in the course of his employment by the defendant who, as the complaint avers, was "operating under the Workmen's Compensation Law of the State of Alabama."

The demurrer of the defendant to the complaint, taking the point among others, that it fails to aver that defendant was negligent in the selection and employment of the physician, was sustained, and the plaintiff declined to plead further, suffered a nonsuit, and appealed.

The law is well settled that, in an action for personal injuries proximately resulting from negligence of the person sued, his agents or servants acting within the line and scope of their employment, the fact that such injuries and damages are aggravated or enhanced through the negligence of a physician selected and employed by the party injured cannot be shown in avoidance or repression of the damages suffered; this for the reason that such malpractice cannot stand as an efficient intervening cause, and the person responsible for the injury through negligence will be held liable for the aggravated injury and damage, as well as that originally resulting. O'Quinn v. Alston, 213 Ala. 346, 104 So. 653, 39 A. L. R. 1263, and note page 1268.

It is also well settled that where a person negligently causes personal injury to another, and the injury and damage are aggravated by the malpractice of a physician or surgeon employed by the person causing the original injury, the person causing the injury is not liable for aggravation of the injury or damage, unless he is negligent in the selection of the physician or surgeon. The basis of this rule is that the physician or surgeon whose negligence caused the damages is not an agent or servant of the original tort-feasor, but is an independent contractor, and is personally liable for his own wrong. Parsons v. Yolande Coal & Coke Co., 206 Ala. 642, 91 So. 493; Purchase v. Seelye, 231 Mass. 434, 121 N.E. 413, 8 A. L. R. 503, and note.

But the appellant insists that cases falling within...