Ruth v. The Witherspoon-Englar Company

• Citation: 98 Kan. 179,157 P. 403
• Decision Date: 06 May 1916
• Docket Number: 20,496
• Parties: J. H. RUTH, Appellee, v. THE WITHERSPOON-ENGLAR COMPANY, Appellant
• Court: United States State Supreme Court of Kansas

157 P. 403

98 Kan. 179

J. H. RUTH, Appellee, v. THE WITHERSPOON-ENGLAR COMPANY, Appellant

No. 20,496

Supreme Court of Kansas

May 6, 1916

Decided, January, 1916.

Appeal from Wyandotte district court, division No. 3; HUGH J. SMITH judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--Compensation for Injury Received in "Course of Employment" Only--Not Augmented by Unskillful Surgical Treatment. In an action under the workmen's compensation act a recovery can be had only upon the basis of disability to labor resulting from the injury received in the course of employment, without the intervention of an independent cause, the separate consequences of which admit of definite ascertainment. It can not be augmented by the fact that the disabling effects of the injury are increased or prolonged by incompetent or negligent surgical treatment, even where the employer is responsible therefor.

2. SAME--Evidence--Disability--"Course of Employment"--Unskillful Surgery. The evidence is held not to justify a finding that the permanent character of an employee's disability is the result of the injury received in the course of his employment, rather than of unskillful surgical treatment, and the verdict is set aside for that reason and because the issue relating to malpractice was not sufficiently presented to the jury.

3. SAME--Evidence--Manner in which Injury Was Received Irrelevant. In an action under the workmen's compensation act evidence of the manner in which the injury was received is ordinarily irrelevant, and testimony given in that connection of ill treatment of the plaintiff by the foreman under whom he worked may be prejudicial as tending to arouse feeling against the defendant in the minds of the jury.

Edwin S. McAnany, Maurice L. Alden, Thomas M. Van Cleave, all of Kansas City, and Frank L. Barry, of Kansas City, Mo., for the appellant; Samuel Maher, of Kansas City, of counsel.

J. E. McFadden, and O. Q. Claflin, jr., both of Kansas City, for the appellee.

OPINION

MASON, J.

James H. Ruth recovered a judgment for $ 4509.20 against the Witherspoon-Englar Company under the workmen's compensation act, and it appeals.

1. The amount of the judgment implied a finding of total disability for the full period of eight years. The principal contention of the defendant is that such a finding was not warranted because, even conceding that the plaintiff is now totally unable to perform labor and that this condition will continue for the period named, the evidence shows that the permanent character of his incapacity is actually the result, not of the injury received while working for the defendant, but of improper surgical treatment. This issue was somewhat obliquely introduced by the pleadings. The answer did not assert that the plaintiff's' condition was in fact due to malpractice, but alleged that he had begun an action against the defendant based upon that theory, stating in his petition that the company was responsible for the fault of the physicians, because they were in its employ and had not been selected with proper care. This method of pleading may have been due to a disinclination on the part of the defendant, in view of the pendency of the other action against it, expressly to admit the malpractice. At the trial the plaintiff made an offer to dismiss the other action provided the defendant would strike out the portion of its answer relating to this matter. The defendant refused the offer, saying that if this part of the answer were stricken out it would at once ask leave to amend, if the court thought an amendment necessary to enable it to show that the "principal injury" the plaintiff had received "did not arise out of and in the course of his employment"--meaning, as the context clearly shows, that it was due to the subsequent treatment he had received. The plaintiff was therefore sufficiently advised of the defendant's claim in this regard. The plaintiff was entitled to recover compensation based only upon such disability, total or partial, as resulted from the injury received in the course of his work, without the intervention of an independent agency. The matter is not confused by the need of determining what results might have been anticipated, or...