Ross v. Erickson Const. Co.

• Decision Date: 17 February 1916
• Docket Number: 12747.
• Parties: ROSS et ux. v. ERICKSON CONST. CO. et al.
• Court: Washington Supreme Court

155 P. 153

89 Wash. 634

ROSS et ux. v. ERICKSON CONST. CO. et al.

No. 12747.

Supreme Court of Washington

February 17, 1916

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by Harry L. Ross and wife against the Erickson Construction Company and another. From a judgment for plaintiffs defendants appeal. Reversed and remanded, with directions to dismiss.

Corwin S. Shank and H. C. Belt, both of Seattle, for appellants.

George C. Congdon, of Seattle, for respondents.

CHADWICK J.

Plaintiffs brought this action for the recovery of damages alleged to have been suffered by reason of the malpractice of defendant McGillivray. Plaintiff, Harry L. Ross, was employed by defendant the Erickson Construction Company, and was injured in the course of his employment. The accident occurred on the 21st day of December, 1913. Plaintiff was taken to the hospital conducted by McGillivray, and remained under his treatment until February 12, 1914. McGillivray was employed to do the surgical and hospital work for the construction company, and was paid for his services out of a fund made up by deducting the sum of $1 from the monthly wages of the employés. After leaving the hospital plaintiff made claim under the Industrial Insurance Law and accepted a final award. This action was thereafter brought against the defendants for the recovery of damages laid in the sum of $15,000. A trial upon the merits was had, resulting in a verdict for plaintiffs in the sum of $1. A new trial was granted upon the grounds of newly discovered evidence. From the order granting a new trial defendants have appealed.

Appellants set up in their answer and maintained throughout the trial that no recovery could be had against either of them, for the reason that respondent Harry L. Ross had been compensated for all injuries resulting from the primary injury, or proximately attributable thereto. This contention is urged on appeal, and our conclusion will make it unnecessary to consider the questions raised by other assignments of error for, if respondents cannot recover at all, other questions become academic. In discussing the question we shall consider the state of the law at the time the Industrial Insurance Law was passed, and the Industrial Insurance Law, its objects and purposes, its accomplishments, and its relation to causes of action that had theretofore been considered as independent of the primary cause of action.

At the time the Industrial Insurance Law was passed, one who had been injured by or through the negligence of an employer could maintain an action and recover all damages proximately traceable to the primary negligence. If the master assumed to collect fees out of the wage of the employé for the purpose of maintaining medical and surgical treatment and hospital service without deriving any profit therefrom, he was bound to exercise due care in providing a proper place for treatment and in selecting physicians and surgeons. A breach of this duty made him liable in damages for the malpractice of the physician or surgeon. Richardson v. Carbon Hill Coal Co., 10 Wash. 648, 39 P. 95; Wells v. Ferry-Baker Lbr. Co., 57 Wash. 658, 107 P. 869, 29 L. R. A. (N. S.) 426; Wharton v. Warner, 75 Wash. 470, 135 P. 235; Simon v. Hamilton Log Co., 76 Wash. 370, 136 P. 361; Wharton & Stille's Med. Jurisp. vol. 3, p. 505; Labatt's Master & Servant, vol. 5, p. 6216. If the master retained a part of the fee for his own use and profit, he became liable as a principal with the physician and surgeon, and answerable for his negligence or lack of skill and learning. Sawdey v. Spokane Falls & Nor. Ry., 30 Wash. 349, 70 P. 972, 94 Am. St. Rep. 880; Richardson v. Carbon Hill Coal Co., 6 Wash. 56, 32 P. 1012, 20 L. R. A. 338; Labatt's M. & S. vol. 5, p. 6214; Wharton & Stillé's Med. Jurisp. vol. 3, p. 506; Shearman & Redfield on Negligence, vol. 2, § 331. If the master did not employ medical and surgical attendance, the one suffering from his negligence could, using ordinary care and diligence only, employ his own physician or surgeon, and if he became the victim of malpractice he could recover his damages from the master. Baldwin v. Lincoln County, 29 Wash. 512, 69 P. 1081; Chicago City Ry. Co. v. Cooney, 196 Ill. 466, 63 N.E. 1029; City of Dallas v. Meyers (Tex. Civ. App.) 55 S.W. 742; Seeton v. Town of Dunbarton, 73 N.H. 134, 59 A. 944; McGarrahan v. N. Y., N.H. & H. R. Co., 171 Mass. 211, 50 N.E. 610.

One phase of the situation was that the workman might be compelled to try one action to secure compensation for the primary injury, and one or more to secure compensation for the secondary wrong; that is, the malpractice of the surgeon. Another phase, as the Legislature notes, was that 'little of the cost of [to] the employer has reached the workman,' and his remedies were 'uncertain, slow, and inadequate.' Then, too, the master might have to defend an action predicated upon the primary issue of negligence, and thereafter submit to a second recovery for the final consequences resulting from the malpractice of the physician employed by him. Both master and servant were subject to the burden of protecting and defending rights within bounds limited only by the statute of limitations. Injustice to the laborer and hardships to the industries of the state alike called for some plan that would relieve the servant of the necessity of pursuing his remedy for compensation in the courts, and the master of the harassments, vexations, and uncertainties attending the trial of all cases where men are called upon to defend against the charge of negligence.

The state, in the exercise of its sovereign power, recognized that the welfare of the whole people depends 'upon its industries, and even more upon its wage-workers,' and accordingly passed a law which was designed to compensate an injured workman, without reference to the manner of his injury, or the questions of negligence, contributory negligence, assumption of risk, or fellow servant. The state declared its power in the following comprehensive language:

'The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extrahazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, 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.' Sess. Laws Wash. 1911, p. 345.

The Legislature undertook to withdraw 'all phases of the premises from private controversy' and provide 'sure and certain relief for workmen,' and to that end abolished 'all civil actions and civil causes of action for such personal injuries,' and abolished all jurisdiction of the courts over such cases, except as in the act provided. The act was----

'founded on the basic principle that certain defined industries, called in the act extrahazardous, should be made to bear the financial losses sustained by the workmen engaged therein through personal injuries, and its purpose is to furnish a remedy that will reach every injury sustained by a workman engaged in any of such industries, and make a sure and certain award therefor, bearing a just proportion to the loss sustained, regardless of the manner in which the injury was received.' State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 175, 117 P. 1105, 37 L. R. A. (N. S.) 466.

In discussing the economic and sociological features of the law, the court, in the case just cited, noticed the omissions of the common law and the inadequacy of its remedies, and the purpose of the act to provide a remedy that would compensate for all injuries traceable to or incident to the hazards of the industry. The court notes that verdicts, just and unjust, had been rendered in personal injury cases:

'For the greater number of injuries the common law affords no remedy at all. For this unscientific system, it is proposed to substitute a system which will make an award in all cases of injury, regardless of the cause or manner of its infliction; limited in amount, it is true, but commensurate in some degree to the disability suffered.' State ex rel. Davis-Smith Co. v. Clausen, supra.

The purpose to remove 'all phases of the premises' from the courts, and to put upon the contributing industries the burden of bearing the consequences of all injuries, and to make them bear the burden of caring for the injured man in the condition in which the state finds him, is recognized and emphasized in Peet v. Mills, 76 Wash. 438 (see page 439), 136 P. 685, 686, Ann. Cas. 1915D, 154:

'It is a well-accepted rule that remedial statutes, seeking the correction of recognized errors and abuses, in introducing some new regulation for the advancement of the public welfare, should be construed with regard to the former law, and the defects or evils sought to be cured, and the remedy provided; that, in so construing such statutes, they should be interpreted liberally, to the end that

the purpose of the Legislature in suppressing the mischief and advancing the remedy be promoted, even to the inclusion of cases within the reason, although outside the letter, of the statute. 36 Cyc. 1173.'

See, also, page 440 of 76 Wash., 136 P. 686, Ann. Cas. 1915D, 154.

'To say, with appellant, that the intent of the act is limited to the abolishment of negligence as a ground of action against an employer only, is to overlook and read out of the act any its declaration of principles the

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