Polucha v. Landes
| Citation | 233 N.W. 264,60 N.D. 159 |
| Decision Date | 25 November 1930 |
| Court | United States State Supreme Court of North Dakota |
Appeal from the District Court of Ward County, Lowe, J.
Reversed.
L J. Palda, Jr., C. E. Brace, Robert W. Palda, E. R. Sinkler G. O. Brekke, and H. H. Cooper, for appellant.
" . . The physician owes to his patient the duty to exercise reasonable and ordinary care, diligence and skill, such as are ordinarily possessed by physicians practicing in similar localities in the general line of practice." Hanson v. Thelan, 42 N.D. 617, 173 N.W. 457.
"Where a physician or surgeon has used the requisite care and skill, he is not liable for a mistake in judgment in diagnosing a physical injury." Van Boskirk v. Pinto, 99 Neb. 164, 155 N.W. 889.
"Where experts (medical) agree . . . the best method becomes largely a matter of judgment of the attending physician, under the apparent circumstances of the case." Van Boskirk v. Pinto, 99 Neb. 164, 155 N.W. 889.
"No one can be charged with carelessness, when he does that which his judgment approves, or where he omits to do that of which he has no time to judge." Luke v. Lowrie, 171 Mich. 122, 136 N.W. 1106, 41 L.R.A.(N.S.) 290.
"One may not assert and enforce two inconsistent modes of redress." Miller Co. v. Harvey Merc. Co. 45 N.D. 503, 178 N.W. 602.
"Where a party with knowledge, or means of knowledge, chooses one of two available but wholly inconsistent modes of redress, he is precluded from electing again and choosing the other mode." Roney v. Halvorson Co. 29 N.D. 13, 149 N.W. 688.
Where an award has been made in case of an injury by a third party, and the award has been paid, the commission could not thereafter vacate the award to enable the employee to sue a third party. Sabatino v. Crimnius Court Co. 102 Misc. 172, 168 N.Y.S. 495, affirmed in 186 A.D. 891.
Where one has received satisfaction for an injury from one of two or more joint tort-feasors, he cannot recover from another. A discharge of one joint tort-feasor discharges all. Robinson v. St. Johnsbury & L.C.R. Co. 80 Vt. 129, 66 A. 814, 9 L.R.A.(N.S.) 1249; Edens v. Fletcher, 79 Kan. 139, 98 P. 784, 19 L.R.A.(N.S.) 618; Matheson v. O'Kane, 211 Mass. 91, 97 N.E. 638, 39 L.R.A.(N.S.) 475; Kropidlewski v. Pferster & U. Leather Co. 149 Wis. 421, 135 N.W. 839, 39 L.R.A.(N.S.) 509; Ridgeway v. Sayre Electric Co. 258 Pa. 400, 102 A. 123, L.R.A. 1918A, 991; Dwy v. Connecticut Co. 89 Conn. 74, 92 A. 883, L.R.A.1915E, 800.
An unqualified release imports full satisfaction. Musolf v. Duluth Edison Electric Co. 108 Minn. 369, 122 N.W. 499, 24 L.R.A.(N.S.) 451.
A party is not entitled to more than one satisfaction for an injury done him. Fitzgerald v. Union Stock Yards Co. 89 Neb. 393, 131 N.W. 612, 33 L.R.A.(N.S.) 983.
There can be but one satisfaction of a joint tort. Abb v. Northern P. Co. 28 Wash. 428, 68 P. 954, 58 L.R.A. 293.
A release of one of two or more joint trespassers is a release of all. Ryan v. Becker, 136 Iowa 273, 111 N.W. 426, 14 L.R.A.(N.S.) 329.
Result of treatment is not evidence of negligence. Thorpe v. Talbott (Iowa) 196 N.W. 716.
"A physician is not an insurer or guarantor of a cure." De Bruine v. Voskuil (Wis.) 169 N.W. 288.
"A surgeon is not responsible for a mistake of judgment or want of success, if he possesses ordinary skill and exercises ordinary care in applying it." Bonnet v. Foote, 47 Colo. 282, 107 P. 252.
"The physician is not an insurer, and the doctrine of res ipsa loquitur has no application." Schmidt v. Stone, 50 N.D. 91, 194 N.W. 917.
"No physician or surgeon is held to a guaranty of results." Baker v. Langar, 165 Iowa 346, 145 N.W. 513; Lawson v. Conaway, 37 W.Va. 159, 16 S.E. 564, 18 L.R.A. 627.
B. H. Bradford, for respondent.
Where the evidence is conflicting, and there is evidence legally sufficient to sustain the verdict under instructions given, the verdict cannot be said to be contrary to such instructions. Nilson v. Horton, 19 N.D. 187, 123 N.W. 397; State v. Werner, 16 N.D. 83, 112 N.W. 60.
BIRDZELL
On April 22, 1927, the plaintiff was injured while working in a mine operated by one Johnson who had fully complied with the workmen's compensation act. He was taken to a hospital in Kenmare for treatment. An examination was made which showed a fracture of the ankle bone or astragalus. About three days thereafter an operation was performed by the defendant in the course of which the astragalus was removed. The plaintiff filed a claim with the workmen's compensation bureau which was received May 7, 1927, showing the fracture of the astragalus and its removal. This was shown both in the first notice of injury and preliminary application signed by the plaintiff and in the accompanying report of his attending physician, Dr. Fisk. The plaintiff spent several months in the hospital at Kenmare and later came to a hospital in Bismarck where he received further treatment. On his application the workmen's compensation bureau made two awards. The first award was based upon a twenty-five per cent permanent partial disability of the left foot for a period of 45.5 weeks for which he was to receive $ 14.17 per week for a period of 45.5 weeks. The bureau also paid hospital and medical services, including the fee of the defendant, and made a supplemental award dated December 12, 1928, reciting as follows: "Whereas the medical evidence filed in the case of Szymon Polucha, Kenmare, North Dakota, indicates that the injury that he sustained on April 22, 1927, has resulted in fifty per cent permanent partial disability of the left foot, and whereas, the claimant, under the bureau's order of January 4, 1928, was awarded compensation for twenty-five per cent permanent partial disability of the left foot, there is, therefore, due him compensation for additional twenty-five per cent. . . ." The resolution then proceeded to award the additional twenty-five per cent. A little more than a year thereafter the present action was brought to recover damages on account of the removal of the astragalus predicating liability upon malpractice in the diagnosis, treatment and operation. The negligence alleged consisted in the failure to diagnose the fracture as a simple fracture without complications and in failing to attempt to reduce the fracture by manipulation and other common and ordinary means not involving an operation for the removal of the bone. It is also alleged that such operation was improper treatment. To the complaint the defendant filed a general denial and as a separate defense pleaded the steps taken by the plaintiff immediately after the injury to secure compensation under the workmen's compensation law and the awards made; that the plaintiff had retained the full benefit of such awards and that under the workmen's compensation act the plaintiff's cause of action, if any, is by operation of law assigned to the compensation bureau which has become subrogated to any rights the plaintiff may have or claim against the defendant, such as alleged in the complaint. Upon the trial of the action the court excluded much of the proof offered in support of this defense. The jury returned a verdict of $ 4,300.00 and from the judgment entered thereon and from an order of the trial court denying the defendant's motion for judgment notwithstanding the verdict, the defendant appeals to this court.
Opinion.The appellant argues (1) that the evidence is insufficient to sustain the allegations of negligence and (2) that the record shows the plaintiff to have sustained an injury in the course of his employment for which compensation has been allowed, including in such award any aggravation thereof which might have been due to negligent treatment by the defendant. From this latter premise it is argued that the plaintiff has no cause of action against the defendant. In the view we take of the case the second contention is decisive of the instant appeal and it will, therefore, be unnecessary to review the evidence to determine its sufficiency or insufficiency to prove negligence.
At the outset it must be conceded that the plaintiff's rights are governed by the workmen's compensation act. He was insured within the law. He was engaged in a hazardous employment and was injured while so engaged. The first section of the law declares that for workmen so injured sure and certain relief is provided (§ 396a1, 1925 Supplement to the Compiled Laws of 1913) "to the exclusion of every other remedy, . . . except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided." We must, therefore, look to the act to determine what rights the plaintiff has under the facts disclosed in the instant case. It will be noted first that the sure and certain relief provided and which the plaintiff received was given apparently as a substitute for every other remedy and that civil causes of action, except as provided by the law, for personal injuries in such cases are abolished. The primary question in the instant case is whether or not the remedy sought by the plaintiff against the fund and which has been made available to him operates to deprive him of the further remedy he now seeks against a third person.
Since the law purports to substitute relief under it for any cause or causes of action through which a claimant might have obtained damages at common law for his personal injuries, we may well look to the scope of the possible common law remedy against the employer in...
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