Schumacher v. Leslie

• Decision Date: 09 October 1950
• Docket Number: No. 41765,41765
• Parties: SCHUMACHER v. LESLIE.
• Court: Missouri Supreme Court

Page 913

232 S.W.2d 913

360 Mo. 1238

SCHUMACHER v. LESLIE.

No. 41765.

Supreme Court of Missouri, en Banc.

Oct. 9, 1950.

Orr, Pflager, Foulis & Andreas, St. Louis, for appellant.

Doris J. Banta, Carter, Bull & McNulty, St. Louis, for respondent.

BOHLING, Commissioner.

Jacob E. Schumacher sued C. H. Leslie, a physician for $10,420 damages for alleged malpractice. Cast on defendant's motion to dismiss for failure to state a claim against defendant, plaintiff has appealed. Plaintiff says the question is whether an employee, covered by the Workmen's Compensation Act, who has sustained a compensable injury under said Act and has had such injury aggravated by the malpractice of the physician furnished by his employer or insurer, can maintain an action against the physician for malpractice if he has not accepted a 'Final Award of Compensation' under the Act. We do not detail the allegations of plaintiff's petition as to do so would serve no useful purpose.

The case turns on the construction of Secs. 3691 and 3699, R.S.1939, Mo.R.S.A., of Chapter 29, relating to Workmen's Compensation. Said sections, so far as material, provide:

'If both employer and employee have elected to accept the provisions of this chapter, the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The rights and remedies herein granted to an employee, shall exclude all other rights and remedies of such employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter. * * *' Sec. 3691, supra.

'Where a third person is liable to the employee * * *, for the injury * * *, the employer shall be subrogated to the right of the employee * * * against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee * * *, but such employer may recover any amount which such employee * * * would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee * * *, and shall be treated as an advance payment by the employer, on account of any future installments of compensation.' Sec. 3699, supra.

We agree with defendant that Hanson v. Norton, 1937, 340 Mo. 1012, 103 S.W.2d 1, is 'in point'; and that it is not to be distinguished by the fact that Hanson accepted the 'Final Award of Compensation' under the Act, and received full satisfaction, whereas plaintiff has refused to accept part of the compensation due him under the Act and has not received full satisfaction. The trial court properly deferred to Hanson v. Norton for the latest rulings on the issues. Plaintiff also argues that he is entitled to maintain this action as against a 'third person' within Sec. 3699, supra, and also that the Workmen's Compensation Act has not taken away his common law action against the physician who aggravated his injury. After carefully considering the applicable Missouri statutes and case law and the cases from other jurisdictions, we conclude we should rechart our course and Hanson v. Norton should not be followed.

The provisions of the Workmen's Compensation acts in the different states are variously worded and holdings under the differently worded statutes need not be developed in detail as the issue is to be determined under the applicable Missouri statutes and case law.

Among the cases reaching the conclusion that no recovery can be had by an injured employee, who has received compensation under a compensation act, against a physician for malpractice resulting in an aggravation of his injury under statutes variously worded are the cases cited in footnote 1.

In other jurisdictions the injured employee's right of action against the physician for malpractice has been upheld. Again, the applicable statutory provisions are variously worded. In some instances the physician has been considered a 'third person.' See cases cited in footnote 2. For other cases advancing different reasons for permitting a recovery, see footnote 3.

In Hanson v. Norton, supra, Norton was employed by Hanson's employer and its insurer to render medical and surgical treatment, and he treated Hanson when he received a compensable injury. Hanson accepted the full compensation awarded him under the Act for his injuries, which included compensation under the Act for the aggravation resulting from Norton's alleged malpractice.

In these circumstances the court held that Norton, the physician, was not a third person under now Sec. 3699, because 'we are of the opinion that in order for a wrongdoer to be a third person against whom an action may be maintained by the injured party, after such injured party has received full compensation under the Compensation Act, such person must be the one who committed, or is responsible for the commission of, the act that resulted in the original injury. Paine v. Wyatt, 217 Iowa 1147, 251 N.W. 78. Under such construction, defendant in the present case, is not a third person under section 3309 [now Sec. 3699, supra], not only because he was not primarily liable under the act, but because he did not commit the original act which resulted in the original injury.' 103 S.W.2d loc. cit. 5.

The court also considered that payment under the Compensation Act effected an accord and satisfaction; applying the common law rule 'that when an injured party has received full satisfaction for his injury, from one wrongdoer, whether the injury was caused by one or more, each of whom may be severally liable, he is barred from further recovery from the other tortfeasors.' This is good law as between common law joint tort-feasors; but whether the 'compensation payable under the Act' constitutes full accord and satisfaction 'at common law' when a third person tort-feasor is liable depends upon the wording of the specific statutory provisions involved.

'The Compensation Act does not take away the employee's common-law right against an offending third person.' Reynolds v. Grain Belt Mills Co., 229 Mo.App. 380, 78 S.W.2d 124, 130. Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153, 155, points out that while Sec. 3699, supra, subrogates the employer to the rights of the employee against a third person: 'yet it is settled that the employee also may sue, independent of the statute, or the two may sue together; and this is true notwithstanding the employee has already claimed and collected compensation under the Act for the same injuries from his employer. Anzer v. Humes-Deal Co., 332 Mo. 432, 58 S.W.2d 962.' ⁴

The employee's rights under the Missouri Compensation Act against his employer embrace compensation for the aggravation of the primary injury through malpractice by a physician selected by the employer, such malpractice constituting a natural consequence of the primary injury. Hughes v. Maryland Cas. Co., 229 Mo.App 472, 76 S.W.2d 1101, 1103 citing cases, and discussion 1105. See Persten v. Chesney, Mo.App., 212 S.W.2d 469, 475. The Act, under Sec. 3691, supra, affords the exclusive remedy for the compensable aggravation of an injury by a physician so far as the liability of the employer or his insurer is concerned, insurers being made primarily liable under Sec. 3715 of the Act and not being 'third persons.' Hughes v. Maryland Cas. Co., supra, 76 S.W.2d loc. cit. 1104[3, 4].

Hanson v. Norton, supra, goes a step farther in holding the common law rights of the employee against a physician for malpractice aggravating a compensable injury to have been abrogated by the Act.

The cases of Staehlin v. Hochdoerfer, Mo.Sup., 235 S.W. 1060, 1062[2, 3], and Parkell v. Fitzporter, 301 Mo 217, 256 S.W. 239, 243[3, 4], 244, 29 A.L.R. 1305, develop the law of Missouri in regard to the liability of a physician for malpractice aggravating an injury.

The facts in Parkell v. Fitzporter are illustrative. Parkell suffered a broken leg when struck by an automobile operated by Fitzporter, a physician. Fitzporter took Parkell to a hospital where he and Dr. Printy, another physician, treated Parkell. Parkell sued Fitzporter for damages on account of the original injury and secured a judgment thereon, which was satisfied. Thereafter Parkell sued Fitzporter and Printy for malpractice.

These cases recognize, where the original injury is the result of a tort, that the original tort-feasor is liable for the original injury and any malpractice of the tort-feasor's physician in treatment aggravating said original injury; that the physician is not liable for the original injury; that the two are joint tort-feasors with respect to the aggravation; and that the two injuries are not so legally connected that the satisfaction of, say, the original injury necessarily bars the suit for malpractice against the physician. In other words, they are to the effect that malpractice on the part of a physician aggravating an original injury is not necessarily such an intervening act as to break the chain of causation between the original injury and the ultimate result, the aggravation being regarded as a probable consequence of the original injury, 6 Schneider, Workmen's Compensation, 56 n. 16; 1 Id., 236, Sec. 97, n. 2; 3 Id., 209, Sec. 841; 71 C.J. 641, Sec. 395; 15 Am.Jur. 494, Secs. 84-86; 58 Am.Jur. 776, Sec. 279; and that such malpractice is, at the same time, sufficiently independent of the original injury to give rise to a cause of action against the physician tort-feasor. When the malpractice is not an act which flows...