Smith v. Beard

Decision Date18 February 1941
Docket Number2159
Citation110 P.2d 260,56 Wyo. 375
CourtWyoming Supreme Court

ERROR to the District Court, Converse County; HARRY P. ILSLEY Judge.

Malpractice action by Janet R. Smith against R. E. Beard and another. Judgment for defendants, and plaintiff brings error.


For the plaintiff in error there were briefs by E. E. Enterline and William B. Cobb of Casper and T. C. Daniels of Douglas, and oral arguments by Messrs. Enterline and Cobb.

The court erred in overruling plaintiffs demurrer to the third defense in the answer of defendant Beard and to the third defense in the answer of defendant Reeve. These defenses seek to justify the negligence of the defendants, by alleging that the plaintiff received awards for temporary total disability under the Workmen's Compensation Law. Defendants thereby admit that they were negligent as to the respective matters alleged in plaintiff's amended petition. Sec. 89-1014, R S. 1931; Phillips on Code Pleading, Secs. 235 and 244; Iba v. Central Association, 5 Wyo. 355; Mutual Life Ins. Co. v. Summer, 19 Wyo. 441. The question involves a consideration of Article 10, Section 4, Wyoming Constitution and Secs. 124-102, 103, 106, 107 and 140, as amended by Chapter 129, Section 6 of the Workmen's Compensation Law. The compensation law does not compensate for all injuries suffered by the workman. Zancanelli v Coal & Coke Co., 25 Wyo. 511; Baldwin v. Byrne, 53 Wyo. 519. Under that law, a workman receives nothing for his pain and suffering. The most plaintiff could receive under the compensation law is $ 4,000.00. In the case of C. & N.W. R. Co. v. Ott, 33 Wyo. 200, plaintiff, a hopeless cripple, was awarded $ 28,174.00. It is no defense to one injuring another that the party injured is compensated from some other source (O'Brien v. Chicago (Ill.) 137 N.E. 214), and there may be a double recovery. Mercer v. Ott (W. Va.) 89 S.E. 952; Merrill v. Marietta (W. Va.) 92 S.E. 112; Jacowicz v. Delaware (N. J.) 92 A. 946; Newar v Klatz (N. J.) 91 A. 91. The negligence of a physician in the treatment of an employee cannot be considered an accident. Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240; Pero v. Collier-Latimer, Inc., 49 Wyo. 131; Baldwin v. Scullion, 50 Wyo. 508; Powell v. Galloway, 16 S.W.2d 489; Ellamar Mining Company v. Possus, 247 F. 421; Ruth v. Englar Company (Kans.) 157 P. 403; Cooke v. Bunton, 11 P.2d 1016; Casualty Co. v. Pillsbury (Cal.) 153 P. 24; Smith v. Hospital (Cal.) 296 P. 127; Viita v. Fleming (Minn.) 155 N.W. 1077; Froid v. Knowles (Colo.) 36 P.2d 156. The court erred in sustaining the motion made by each of the defendants for a directed verdict at the close of all the evidence. It was unnecessary for plaintiff to prove all of the allegations of negligence in order to perfect her cause of action. Criss v. Hospital Association (Cal.) 56 P.2d 1274; Parker v. Manchester Hotel Co. (Cal.) 85 P.2d 152; Sim v. Weeks (Cal.) 45 P.2d 350; Dimock v. Miller (Cal.) 262 P. 311. It is not necessary that the circumstances shall establish negligence of defendant as the proximate cause of injury. Ley v. Bishopp (Cal.) 263 P. 369; Barham v. Widing (Cal.) 291 P. 173. See also the malpractice case of McBride v. Saylin (Calif.) 56 P.2d 941; Patterson v. Hunt (Wash.) 84 P.2d 999; Edwards v. Hospital, 89 S.W.2d 801; Jones v. Wettlin, 39 Wyo. 331; 48 C. J. Sec. 140; Bolles v. Kinton (Colo.) 263 P. 26; McCoy v. Clegg, 36 Wyo. 473; Stagner v. Files (Okla.) 78 P.2d 418; Shannon v. Shaffer Oil & Refining Co., 51 F.2d 878; Weintraube v. Rosen, 93 F.2d 544. Plaintiff made a prima facie case against the defendant Beard. Williams v. U. P. R. R. Co., 20 Wyo. 392; Gas & Elec. Co. v. Priest (Okla.) 62 P.2d 55; Tony Vesel v. Mining Co. (Mont.) 100 P.2d 75. The rule governing directed verdicts is well established by the following cases: Wright v. Conway, 34 Wyo. 1; McCoy v. Clegg, 36 Wyo. 473; Collins v. Anderson, 37 Wyo. 275; State Bank v. Surety Co., 44 Wyo. 532; Jackson v. Hansard, 45 Wyo. 201; Rosson v. Hylton, 45 Wyo. 540; Harris v. Schoonmaker, 50 Wyo. 119; Company v. Brouilette, 51 Wyo. 132; Galicich v. R. Co. (Wyo.) 87 P.2d 27. The facts in this case show more than mere speculation or conjecture as to negligence and resulting injury to plaintiff. Powell v. Galloway, 16 S.W.2d 489; Sim v. Weeks, 45 P.2d 350; McBride v. Saylin, 56 P.2d 941; White v. Burton (Okla.) 71 P.2d 694; Riggs v. Gouldner (Kans.) 96 P.2d 695. The court erred in excluding plaintiff's Exhibit 1. Jones on Evidence, Sec. 581. The court erred in admitting plaintiff's Exhibit C over plaintiff's objections. The court erred in sustaining the objection of defendant to plaintiff's offer of proof with respect to her willingness to receive treatment. The foregoing and many other errors of law occurring at the trial, and set forth in the appeal record, should justify a reversal of the judgment. Fire Ins. Company v. Boler (Wyo.) 102 P.2d 39. See also Phifer v. Baker, 34 Wyo. 415. The judgment and order of the trial court should be reversed and a new trial granted.

For the defendant in error, Beard, there was a brief by C. Henry Austin, and Hagens & Wehrli of Casper.

On behalf of defendant in error, Beard, it was incumbent upon plaintiff to show that Beard employed Reeve in this case; that Reeve was a negligent and incompetent physician and surgeon, and that he was guilty of malpractice, resulting in damage. Plaintiff failed to prove either of the above facts. The court did not err in overruling plaintiff's demurrer to defendant's second defense. Defendant was entitled to set up any ground of defense in mitigation of damages or as a bar to plaintiff's suit. It is well settled that a patient must not have contributed to his injury but must conform to all reasonable directions of his physician. Hanson v. Thelan, 173 N.W. 457. He is also obligated to submit to medical treatment. Carey v. Mercer (Mass.) 132 N.E. 353; Peterson v. Branton (Minn.) 162 N.W. 895; Schultz v. Tasche (Wisc.) 165 N.W. 292; Summers v. Tarpley (Mo.) 208 S.W. 266; Halverson v. Zimmerman (N. D.) 232 N.W. 754; 21 R. C. L. 402. The Workmen's Compensation Law was a good defense either in bar or in mitigation of damages. Gray v. Boston Ry. Co. (Mass.) 102 N.E. 71. An injured workman may recover under the Compensation Law for a new injury or an aggravation of his injury. Pawlak v. Hayes (Wis.) 156 N.W. 464. An employer is liable for consequences following an accident, including employee's medical treatment. Sarber v. Life Ins. Co., 23 F.2d 434; Roman v. Smith, 42 F.2d 931; Booth v. Flynn & Cook (Okla.) 193 P. 36; Polucha v. Landes (N. D.) 233 N.W. 264; Vatalaro v. Thomas (Mass.) 160 N.E. 269; Williams v. Dale (Ore.) 8 P.2d 578; Hanson v. Norton (Mo.) 103 S.W.2d 1; Stiger v. Comm. (Wisc.) 265 N.W. 678; 2 Schneider on Workmen's Compensation, p. 1638; Wingate v. Laundry (Nebr.) 244 N.W. 635. This court has held that an injured workman may recover under the compensation law not only for the original injury, but for all damage that follows therefrom. Bakery v. Schriver, 43 Wyo. 109. When total disability has been compensated, the workman cannot tag on another disability. Baffi v. Valley Coal Co., 87 Super. Ct. 579; Marsh v. Aljoe, 41 Wyo. 220. The burden is upon the claimant to prove the injury due to accident without aggravation. Ruth v. Witherspoon-Englar Company (Kans.) 157 P. 403; Schultz v. Tasche (Wisc.) 165 N.W. 292; Summers v. Tarpley (Mo.) 208 S.W. 266. The Compensation Law was properly pleaded for the reason that whatever defendant did, he was acting for his principal, who was exempt from an action at law. Section 124-103, R. S. 1931. The manager of a company is not responsible for the torts of an employee under him. Ellis v. Ry. Co. (S. C.) 52 S.E. 228; Thurman v. Pittsburg Co. (Mont.) 108 P. 588; Zurich v. Elevator Company, 171 N.E. 688; Mofield v. Pipe Line Co. (Okla.) 27 F.2d 890; Stanolind Oil & Gas Co. v. Bunce, 51 Wyo. 1; Hisle v. Ry. Co. (Kans.) 138 P. 610; Schneider v. Cahill (Ky.) 127 S.W. 143; Gibson v. Sioux County (Ia.) 168 N.W. 80; Hartford Coal Co. v. Helsing, 263 N.W. 269. The evidence does not show that Dr. Reeve was a negligent or incompetent physician or surgeon, and if we assume that he was, there is no evidence that Beard knew it or should have known it. There is no evidence that there was a lack of reasonable care in selecting the physician and surgeon. Williams v. U. P. R. R. Co., 20 Wyo. 392; Hardin v. Ry. Co., 122 S.E. 582; Engirbritson v. Tri-State Cedar Co. (Wash.) 157 P. 677; Atlantic Company v. Whitney (Fla.) 56 So. 937.

In behalf of defendant in error, R. H. Reeve, there was a separate brief by R. R. Rose of Casper.

At common law, if one is injured by the negligence of another and these injuries are aggravated by the negligence of a physician employed to repair the injury, the negligence of the wrongdoer in causing the original injury is regarded as the proximate cause of the damage flowing from the physician's negligent treatment and the injured person may recover from the original wrongdoer the damages resulting from the physician's negligence as well as from the original wrong. Kirby Lumber Co. v. Ellison (Tex.) 270 S.W. 920; Paine v. Wyatt (Iowa) 251 N.W. 78; Fisher v. Milwaukee Railway Co., 180 N.W. 269; Smith v. Kansas City Railway Co. (Mo.) 232 S.W. 261; Gray v. Railway Co., 102 N.E. 71; Parsons v Coal & Coke Co. (Ala.) 91 So. 493. In a proceeding under the Workmen's Compensation Law, the negligence of a physician attending a patient on account of injuries received in extra-hazardous employment while both workman and employer were under the Compensation Law, is compensable as proximately resulting from the original injury. In re Burns (Mass.) 105 N.E. 601; Cauvin's Case (Me.) 167 A. 860; National Rolling Mill Co. v. Kish (Ind.) 139 N.E....

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