Tutino v. Ford Motor Co.

• Decision Date: 16 October 1933
• Docket Number: No. 120.,120.
• Citation: 168 A. 749
• Parties: TUTINO v. FORD MOTOR CO.
• Court: New Jersey Supreme Court

168 A. 749

TUTINO

v. FORD MOTOR CO.

No. 120.

Court of Errors and Appeals of New Jersey.

Oct. 16, 1933.

Syllabus by the Court.

1. The Workmen's Compensation Act (Comp. St. Supp. § **236—1 et seq.), when it controls, is the exclusive remedy for the recovery of compensation for accidental injuries

arising out of and in the course of employment.

2. Under the Workmen's Compensation Act there may be recovery for an aggravation of a compensable injury.

3. The treatment of an injury may be of such a nature as to break the causal connection between the Injury suffered and the accident.

4. An employer providing medical and surgical aid for injured employees is not liable for the lack of skill and training of physicians employed.

5. There is no evidence in this case that the employer was negligent in the selection of the physician and nurses employed.

6. An employer is not liable for the lack of skill and training of nurses employed by it, where the nurses are subject solely to the orders and directions of a trained physician.

The CHANCELLOR, the CHIEF JUSTICE, DONGES, HEHER, and PERSKIE, Justices, and VAN BUSKIRK, Judge, dissenting.

Appeal from Supreme Court.

Action by Alfred Tutino against the Ford Motor Company. Judgment for plaintiff, and defendant appeals.

Judgment reversed.

Lindabury, Depue & Faulks and Burtis S. Horner and Walter F. Waldau, all of Newark, for appellant.

Edward A. Markley, Charles W. Broadhurst, and Thomas J. Stanton, all of Jersey City, for respondent.

BODINE, Justice.

The plaintiff recovered damages for the loss of an eye in a common-law action. At the time of the accident he was employed as a machinist. He was drilling a hole in some concrete when a particle entered his left eye. He was treated in first aid rooms established by the defendant, and was attended by nurses and a physician also in its employ. The basis of the action was the improper manner in which the defendant had performed its duty to furnish proper medical and surgical treatment, and because of the lack of skill and training of its employees. The recovery could only be had for injuries not arising out of and in the course of the employment. For the decision of this case it may be said that the proofs tend to show that the nurses and physician employed by the defendant improperly and in a negligent manner removed the concrete imbedded in the eye, the nurses and not the physician probing in the eye, contrary to good medical practice. The physician instructed them so to do.

The plaintiff's employment was under the second section of the Workmen's Compensation Act (Comp. St. Supp. § **236—7 et seq.). For accidental injuries arising out of and in the course of his employment the statute furnished an exclusive remedy. Gregutis v. Waclark Wire Works, 86 N. J. Law, 610, 92

A. 354.

An employee may recover under the act compensation for injuries caused to a thumb by reason of an unguarded or unpadded splint used in reducing the fracture of an arm broken by reason of an accident arising out of and in the course of the employment. Newcomb v. Albertson, 85 N. J. Law, 435, 89 A. 928, 929. The workman is also entitled to additional compensation for injuries suffered by the rebreaking of an arm due to a fall. Selak v. Murray Rubber Co., 152 A. 78, 8 N. J. Misc. 838; Id., 108 N. J. Law, 548, 159 A. 93.

The following test of causal connection was approved by Air. Justice Swayze in Newcomb V. Albertson, supra, and has since been regarded as controlling: "It seems to me enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened, and if the accident is one of the contributing causes without which the injury which actually followed would not have followed."

The theory of the present case and the one on which it was sent to the jury was that the causal connection between the injury to the eye and the resulting loss thereof was due to the malpractice of the physician and nurses employed by the defendant, and that therefore there was an independent injury for which there could be recovery.

The English cases of Delia Rocca v. Stanley Jones & Co., (1914) W. C. & Ins. Rep. 34, and Dumber Towing Co., Ltd., v. Barclay, 5

B. W. C. C. 142, go no further than holding that malpractice may break the causal connection between the accident and the resulting injury. In Harrison v. Ford, 8 B. W. C. C. 429, it was held that the resulting incapacity may be due to the accident, even though the employee received improper care at a local hospital. The question of cause and effect often lead to indefinite speculation.

Taking the test approved by Justice Swayze in Newcomb v. Albertson, supra, this situation appears that without the employment there would have been no accident; without the accident there would have been no treatment of the eye by defendant's employees, and there would have been no loss thereof. Had the employee gone to an independent physician, who was guilty of malpractice, conceivably another situation might arise which we are not here called upon to decide. The English courts do take the view that the employer cannot be the insurer of every bone-setter who may attend an injured workman.

"Both in England and this country, under the various...