Roman v. Smith
| Citation | 42 F.2d 931 |
| Decision Date | 31 May 1930 |
| Docket Number | No. 1120.,1120. |
| Parties | ROMAN v. SMITH et al. |
| Court | U.S. District Court — District of Idaho |
Farley, Young & Farley, and Francis A. Garrecht, all of Spokane, Wash., for plaintiff.
E. J. Cannon, of Spokane, Wash., and H. J. Hull, of Wallace, Idaho, for defendants.
The plaintiff brings this action to recover damages from defendants Smith and Werlich, licensed surgeons and physicians doing business under the firm name of the Wallace Hospital, and the Hartford Accident & Indemnity Company, alleged to have been suffered by reason of the unskillfulness and carelessness of one Horsky, acting for the physicians in setting and bringing the fractured ends of the femur bone in plaintiff's left thigh so that a union might be effected. Smith and Werlich owned and operated the hospital, and under contract with the Callahan Zinc & Lead Company they obligated themselves to provide medical and surgical treatment and hospital attendance for the employees of the company. Plaintiff elected and was entitled to receive the benefit of the hospital contract prior to receiving his injury, which occurred on May 26, 1928, while engaged in work in the mine of the Callahan Company. Immediately after receiving his injury he was removed from the mine and taken to the hospital and placed in charge of the doctors for treatment, who then placed him in charge of Horsky, an employee of theirs. It is charged that the insurance company was surety for the Callahan Company, and stands in relation to plaintiff as plaintiff's employer under the provisions of the Workmen's Compensation Law of Idaho. He was an employee within the contemplation and under the provisions of the Compensation Act of the state. The inquiry here is, Was the injury for which plaintiff is seeking compensation so related to and connected with the injury he received by reason of the accident as to authorize an award under the Compensation Act, and, if so, is the remedy thus provided exclusive of all other remedies? It is evident from a reading of the Idaho Workmen's Compensation Act that the Legislature intended to withdraw from private controversy and insure relief for injured workmen regardless of the question of fault and to the exclusion of every other remedy, except as provided by section 6220, C. S. Idaho, of the act, which reads:
"When an injury for which compensation is payable under this chapter shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this chapter or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this chapter any employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee to recover against that person: Provided, If the employer shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this chapter, then any such excess shall be paid to the injured...
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