Sarber v. Aetna Life Ins. Co.

• Decision Date: 09 January 1928
• Docket Number: No. 5156.,5156.
• Citation: 23 F.2d 434
• Parties: SARBER v. ETNA LIFE INS. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

23 F.2d 434 (1928)

SARBER v. ETNA LIFE INS. CO.^*

No. 5156.

Circuit Court of Appeals, Ninth Circuit.

January 9, 1928.

Eddy Knapp and Lyman I. Mowry, both of San Francisco, Cal., for plaintiff in error.

Redman & Alexander, of San Francisco, Cal., for defendant in error.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

RUDKIN, Circuit Judge.

This was an action for deceit. It appears from the original complaint that on July 23, 1923, the plaintiff was an employee, within the contemplation and under the provisions of the Workmen's Compensation Act of the state of California (St. 1913, p. 279, as amended); that on the above date, in the course of his employment, a small fragment of steel penetrated his leg, causing injury thereto; that the defendant, as insurance carrier, took over and assumed the burdens, duties, and obligations imposed on the employer by the Compensation Act; that the plaintiff immediately demanded of the defendant that the fragment of steel be removed from his leg, but the defendant refused to comply with the demand; that thereafter, in December, 1923, and January, 1924, an operation was performed at the instance of the defendant for the purpose of removing the fragment of steel, but the same was not then removed; that defendant not only concealed from plaintiff the fact that the fragment of steel had not been removed, but actually informed him that it had been so removed; that plaintiff remained in ignorance of the fact that the fragment of steel had not been removed until August, 1925; that on April 26, 1926, a second operation was performed, and the fragment of steel was then removed; that until such fragment of steel was extracted and removed plaintiff suffered great physical pain and was unable to work and earn a living; that he incurred certain expenses for the services of physicians and surgeons; and that by reason of the deceit thus practiced upon him he was damaged in the sum of $10,000 in all. Some of the foregoing facts appear only inferentially from the complaint, but on the argument before this court the facts were assumed to be as above set forth. The defendant demurred to the complaint, on the ground, among others, that the court had no jurisdiction of the subject-matter of the action or of the parties, because jurisdiction was vested exclusively in the Industrial Accident Commission of the state, under the provisions of the Compensation Act. The demurrer was sustained without leave to amend, and the judgment of dismissal is now before us for review.

It should be stated at the outstart that, when the insurance carrier is substituted for the employer under the provisions of the Compensation Act, the carrier is subrogated to all the rights and duties of the employer. Two questions are therefore presented for decision: Was the plaintiff in error entitled to compensation under the Compensation Act for the injuries set forth in his complaint? And, if so; is the remedy there given an exclusive one?

Under the great weight of authority the employer is liable for all legitimate consequences following an accident, including unskillfulness or error of judgment of the physician furnished as required, and the employee is entitled to recover under the schedule of compensation for the extent of his disability, based on the ultimate result of the accident, regardless of the fact that the disability has been aggravated and increased by the intervening negligence or carelessness of the employer's selected physician. Drengwitz v. Lincoln Coal & Brick Co., 317 Ill. 302, 148 N. E. 79, 39 A. L. R. 1270; Pawlak v. Hayes, 162 Wis. 503, 156 N. W. 464, L. R. A. 1917A, 392; Oleszek v. Ford Motor Co., 217 Mich. 318, 186 N. W. 719; Kirby Lumber Co. v. Ellison (Tex. Civ. App.) 270 S. W. 920; Ross v. Erickson Const. Co., 89 Wash. 634, 155 P. 153, L. R. A. 1916F, 319; Smith v. Missouri, K. & T. Ry. Co., 76 Okl. 303...