Polucha v. Landes, 5775.

• Decision Date: 25 November 1930
• Docket Number: No. 5775.,5775.
• Citation: 60 N.D. 159,233 N.W. 264
• Parties: POLUCHA v. LANDES.
• Court: North Dakota Supreme Court

60 N.D. 159

233 N.W. 264

POLUCHA

v.LANDES.

No. 5775.

Supreme Court of North Dakota.

Nov. 25, 1930.

Syllabus by the Court.

According to the common law, one liable to respond in damages for personal injuries is responsible for any aggravation of the original injuries due to the malpractice of a physician or surgeon reasonably selected by such injured person.

Syllabus by the Court.

The rule of causation applied in negligence cases at common law in determining responsibility for physical injuries is applicable in cases arising under the Workmen's Compensation Act.

Syllabus by the Court.

The Workmen's Compensation Law (sections 396a1 and 396a3, 1925 Supplement to the Compiled Laws of 1913), in taking away the common-law remedies of an employee against a negligent, insured employer, and in substituting therefora right against the workmen's compensation fund to compensation based upon the degree of physical disability caused by an injury sustained in the course of employment, makes the workmen's compensation fund liable on account of the original injury for disability increased through the malpractice of a physician or surgeon.

Syllabus by the Court.

The Workmen's Compensation Law does not relieve any person not an employer from the consequences of his negligent act.

Syllabus by the Court.

Under section 396a20, 1925 Supplement to the Compiled Laws of 1913, which provides for subrogation as to a cause of action against a third person liable to pay damages in respect to a compensable injury, one who has received from the fund compensation for an injury, including such aggravation as might have been occasioned by the malpractice of a physician or surgeon, may not pursue the cause of action against the latter, the same having passed to the workmen's compensation fund by operation of law.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Action by Szymon Polucha against Herbert E. Landes. From a judgment for plaintiff; and from an order denying defendant's motion for judgment, notwithstanding verdict, defendant appeals.

Reversed, and action dismissed.

BURR, J., dissenting in part.

L. J. Palda, Jr., C. E. Brace, Robert W. Palda, E. R. Sinkler, and G. O. Brekke, of Minot, and H. H. Cooper, of Kenmare, for appellant.

B. H. Bradford, of Minot, for respondent.

Statement of Facts.

BIRDZELL, J.

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 25 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 25 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, 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 (section 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.

[1] 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 determining the extent of the compensation authorized as a substitute. At common law one liable to respond in damages, as employers frequently were for personal injuries sustained by employees, is held liable in damages for the injury, including any aggravation thereof due to the mistake of the physician or surgeon selected by the injured person in the exercise of due care for the purpose of treating the injuries and thus minimizing the damages. The aggravation in such cases is not deemed to be the fault of the injured person, but is regarded in law as a consequence of the original fault of the defendant. It is, therefore, not such an independent, intervening act of a third party as to break the chain of causation between the primary injury and the ultimate consequence or result. Many cases might be cited in support of this rule, but the following are sufficient to indicate its wide and general acceptance: Pyke v. City of Jamestown, 15 N. D. 157, 107 N. W. 359;Boa v. San Francisco-Oakland Terminal Railways, 182 Cal. 93, 187 P. 2;Dewhirst v. Leopold, 194 Cal. 424, 229 P. 30;Ross v. Stamford, 88 Conn. 260, 91 A. 201;Wright v. Blakeslee, 102 Conn. 162, 128 A. 113;Chicago City Railway Co. v. Cooney, 196 Ill. 466, 63 N. E. 1029;Variety Manufacturing Co. v. Landaker, 227 Ill. 22, 81 N. E. 47;Suelzer v. Carpenter, 183 Ind. 23, 107 N. E. 467;Doran v. Waterloo, C. F. & N. R. Co. (Iowa) 147 N. W. 1100;McIntosh v. Atchison, T. & S. F. Ry. Co., 109 Kan. 246, 198 P. 1084;Hooper v. Bacon, 101 Me. 533, 64 A. 950;Gray v. Boston Elevated Railway Co., 215 Mass. 143, 102 N. E. 71; Burns' Case, 218 Mass. 8, 105 N. E. 601, Ann. Cas. 1916A, 787;Goss v. Goss, 102 Minn. 346, 113 N. W. 690;Fields v. Mankato Electric Traction Co., 116 Minn. 218, 133 N. W. 577;Pederson v. Eppard (Minn.) 231 N. W. 393;Scholl v. Grayson, 147 Mo. App. 652, 127 S. W. 415;Smith v. Kansas City Rys. Co., 208 Mo. App. 139, 232 S. W. 261;Yarbrough v. Hines, 112 Wash. 310, 192 P. 886;Fisher v. Milwaukee Electric Railway & Light Co., 173 Wis. 57, 180 N. W. 269;Retelle v. Sullivan, 191...