Pate v. General Elec. Co.
Decision Date | 04 September 1953 |
Docket Number | No. 32314,32314 |
Parties | PATE, v. GENERAL ELECTRIC CO. et al. |
Court | Washington Supreme Court |
Moulton, Powell, Gess & Loney, Kennewick, for appellants.
Tonkoff & Holst, Blaine Hopp, Jr., Yakima, for respondent.
Plaintiff was injured while engaged in extrahazardous work. No report of the accident was made to the state department of labor and industries. No claim was filed by plaintiff, nor by any one in his behalf, for benefits under the workmen's compensation act. Plaintiff, in his brief, describes his action against defendant employers as follows:
The trial judge, in a memorandum opinion, describes plaintiff's action in these words:
Defendant employers appeal from a judgment entered upon a jury's verdict against them.
The facts necessary for our decision are these:
Plaintiff, a steamfitter, was an employee of Morrison-Knudsen Company, a subcontractor of General Electric Company on the Hanford project at Richland, Washington. The two companies operated under a war project insurance rating plan with the department of labor and industries pursuant to Rem.Supp.1943, § 7796-25. The doctors involved were full-time employees of defendants.
February 24, 1948, plaintiff fell. His left leg was doubled under him. He suffered a severely sprained ankle. He was taken to a company first aid station and then to the hospital for an X ray. The hospital records show: 'Ankle and lower leg, tender and swollen--some limitation of motion.'
Plaintiff testified:
'A. * * * After the x-ray was taken the doctor came out and says 'Well, there is no broken bones and you should return to work regardless of whether you do anything or not, just be on the payroll and keep the accident reports down.' He said 'You have a bad sprain.'
Plaintiff continued to report for work. For a week or so he 'sat on a nail keg and made coffee,' before they permitted him to do anything further. He remained on the payroll until June 22, 1949. He received treatment for many months, but was not charged for the medical treatment he received.
On cross-examination, plaintiff testified:
'Q. It never occurred to you at any time during the time this was going on you shouldn't be making application for industrial insurance? A. No. I thought it was the doctor's place to tell me it was bad enough to make one out.
Q. The only time a statement was made to you by a doctor, was the doctor who examined the x-ray? A. That's right.
'Q. That is the only doctor that talked to you? A. Yes, and he told me 'you have no broken bones, just a sprain and there is no need to make out an application for insurance.'
' (Italics ours.)
Plaintiff testified that within thirty to sixty days after the accident, one of the physicians employed by defendants informed him that he had varicose veins in his left leg and that they were his 'own personal injury.' (The medical chart notes such condition existed on March 9, 1948, fourteen days after the accident.) On March 30, 1948, plaintiff was discharged from medical care.
It is not necessary for us to detail further the condition of plaintiff's leg. Later, after his employment was terminated, an operation was performed to ligate the veins. He is still disabled by reason of the condition of his leg. There is medical testimony that the varicose veins resulted from the fall in 1948, and that in all probability it will be necessary to amputate the leg within five years. Plaintiff did not file a claim within one year of his accident, as required by Rem.Rev.Stat., § 7686(d), cf. RCW 51.28.050.
The trial court instructed the jury on two theories which had been pleaded in plaintiff's complaint--namely, negligence of defendants or fraud. The jury returned a verdict in favor of plaintiff. By special interrogatory the jury found that defendants were liable to plaintiff by reason of their negligence in not informing him of his rights under the workmen's compensation act. Thus, the theory, that defendants had practiced a fraud upon plaintiff, was rejected. The jury having rejected the theory of fraud, we are not called upon to discuss it, and we therefore express no opinion upon that theory.
The crux of the problem, presented by appropriate assignments of error, is this:
No claim for benefits having been filed within the statutory period under the workmen's compensation act by an injured workman for a compensable injury, is an employer liable to him in damages (measured by what the workman would have received under the act) upon the theory of negligence, when (a) the employer does not report the accident to the department of labor and industries, and (b) a physician in the full-time employment of the employer does not inform the injured workman of his rights under the workmen's compensation act?
The essential elements of actionable negligence are (1) the existence of a duty, (2) a breach thereof, and (3) a resulting injury. McCoy v. Courtney, 1946, 25 Wash.2d 956, 172 P.2d 596; Laurelon Terrace Inc. v. City of Seattle, 1952, 40 Wash.2d 883, 246 P.2d 1113.
It should be borne in mind that the physicians involved were full-time employees of defendants. This is not a situation where an employer refers an injured workman to a physician practicing his profession independently of the employer, nor is it a situation where an injured employee consults a physician upon his own initiative.
Whether a duty exists is a question of law. In the absence of statutory requirement, defendants and their full-time physician employees had no legal duty to inform plaintiff of his possible rights under the workmen's compensation act. We turn, therefore, to the statutes.
Rem.Rev.Stat., § 7689, cf. RCW 51.28.010, provides:
'Whenever any accident occurs to any workman it shall be the duty of such workman or someone in his behalf to forthwith report such accident to his employer, superintendent or foreman in charge of the work [this was done], and of the employer to at once report such accident and the injury resulting therefrom to the department, and also to any local...
To continue reading
Request your trial-
Lewis v. Scott
...of a duty, (2) the breach thereof, which must be a proximate cause of the injury, and (3) the resulting damage. Pate v. General Electric Co., 1953, 43 Wash.2d 185, 260 P.2d 901; McCoy v. Courtney, 1946, 25 Wash.2d 956, 172 P.2d 596, 170 A.L.R. 603; 65 C.J.S. Negligence § 2, p. Do the findin......
-
Longe v. Boise Cascade Corp., 98-384.
...employer had no affirmative duty to apprise compensation claimant of any or all available benefits); Pate v. General Elec. Co., 43 Wash.2d 185, 260 P.2d 901, 903 (1953). The circumstances of this case do not invoke the doctrines of equitable estoppel or equitable tolling. It is unclear whet......
-
Nadeau v. Power Plant Engineering Co.
...51.02.040, 51.20.250 of the Revised Code of Washington; Ash v. S. S. Mullen, 43 Wash.2d 345, 261 P.2d 118; Pate v. General Electric Co., 43 Wash.2d 185, 260 P.2d 901; Anderson v. Allison, 12 Wash.2d 487, 122 P.2d 484, 139 A.L.R. 1003; Rector v. Cherry Valley Timber Co., 115 Wash. 31, 196 P.......
-
Pate v. General Electric Co., 32314
...Upon a rehearing En Banc, a majority of the court adheres to the departmental opinion heretofore filed herein and reported in Wash., 260 P.2d 901. GRADY, Chief Justice The rehearing of this case has convinced me that the department was in error when it reversed the judgment. Neither of the ......