Vesel v. Jardine Mining Co.

• Citation: 100 P.2d 75,110 Mont. 82
• Decision Date: 14 December 1939
• Docket Number: 7972.
• Parties: VESEL v. JARDINE MINING CO.
• Court: United States State Supreme Court of Montana

100 P.2d 75

110 Mont. 82

VESEL v. JARDINE MINING CO.

No. 7972.

Supreme Court of Montana

December 14, 1939

Rehearing Denied March 20, 1940.

Appeal from Sixth District Court, Park County; C. F. Holt, Judge.

Action by Tony Vesel against the Jardine Mining Company to recover damages for personal injuries caused by negligent treatment of plaintiff's injured eye by defendant and another. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded with directions.

S. C Ford and Sam Goza, Jr., both of Helena, for appellant.

C. E Wohl, of Butte, for respondent.

J. E ROCKWOOD, District Judge.

This action was brought by the appellant against respondent Jardine Mining Company, a duly organized and existing corporation of the State of Montana, claiming damages by reason of permanent injuries alleged to have been suffered by the negligent treatment of his right eye by respondent and another at Jardine, in Park County, Montana.

Vesel's amended complaint was filed October 7, 1938. A motion to strike certain allegations from the complaint was denied by the lower court. On February 20, 1939, respondent filed a demurrer which was sustained by the lower court upon which a judgment of dismissal was entered. The appellant prosecutes this appeal from the judgment of dismissal.

The complaint discloses the following facts: On or about June 2, 1936, appellant was employed by respondent in a hazardous occupation as a miner, in a mine operated and conducted by respondent at Jardine, in Park County, Montana. On that date appellant was operating a drill in a stope of respondent's mine, at which time and place a fragment of steel was knocked or chipped from the drill and struck appellant in the right eye. He continued his employment for about an hour, but his eye became painful and inflamed so that it was necessary for him to quit his work before the end of the day's shift. He then reported his injury to respondent's foreman, who directed him to report his injury to the main office of the respondent. This appellant did. That upon his reporting his injury to the respondent, the respondent then voluntarily and gratuitously assumed to render medical aid and attention to appellant. It is alleged that appellant was directed and taken by respondent to one Mrs. M. O. Davison for examination and treatment; that the respondent acted in violation of its duty by sending appellant to Mrs. Davison; that respondent knew or should have known that Mrs. Davison was not qualified or competent to furnish appellant with the medical care and treatment required by the injury to appellant's eye, and that respondent knew or should have known that to cause appellant to be treated and cared for by an unskilled, incompetent person would result in aggravation and additional injury to the eye of appellant. It is also alleged that Mrs. M. O. Davison then and there took a piece of cotton and rubbed it over and across the injured eyeball of appellant and negligently pressed the steel fragment beneath the surface of the eyeball so that it was not visible from outward inspection, and could not be felt by appellant's eyelid. He then alleges that he went to Mrs. Davison for treatment until July 12, 1936; that from time to time after the injury until July 12, 1936, Mrs. Davison told appellant there was nothing the matter with his eye, that it did not need medical attention and it was not necessary to consult a physician or surgeon, and that the eye would be "all right" shortly; that he advised Mrs. Davison he could see black spots in his right eye, but she advised him the black spots would soon disappear. Appellant further alleges that he continued his employment relying upon the advice of Mrs. M. O. Davison until about July 1, 1937, when his right eye became discolored and the vision impaired; that he then consulted physicians and surgeons including the Mayo Clinic at Rochester, Minnesota, and was advised that the piece of steel was imbedded in the back of the eye; that an operation to remove the steel was attempted but failed; that he has lost the sight of his right eye and the sight of his left eye is endangered; that all the injuries of appellant were caused by the negligence and carelessness of respondent in causing appellant to be treated by an unskilled, incompetent person after voluntarily and gratuitously assuming on June 2, 1936, to render medical aid to appellant.

It is then alleged by appellant that he is a miner by occupation and not equipped nor able to follow any other gainful occupation and by reason of his injury is now totally and permanently disabled. That on and prior to June 2, 1936, appellant and respondent had elected to be and were bound by the Workmen's Compensation Act of the State of Montana, Rev.Codes 1935, § 2816 et seq.; that respondent maintained near its said mine a first aid station in charge of one Mrs. M. O. Davison in which the employees of respondent, who were injured in the course of their employment, were treated for such injuries by Mrs. Davison at the direction of the respondent.

The appellant assigns specification of errors:

(a) The court erred in making and entering the order sustaining the demurrer of respondent; and

(b) The court erred in making and entering the judgment of dismissal.

Appellant urges that his action for damages arises out of the negligence of the respondent subsequent to the accident. He makes no attempt to secure damages for the original injury occasioned by the industrial accident, but seeks damages for the injury sustained because of the negligence of respondent subsequent to the industrial accident.

Contra, the respondent maintains that the provisions of the Workmen's Compensation Act are exclusive of every cause of action except those saved by the Act, and that appellant's cause is not so saved, that appellant's present physical condition is due to an aggravation of an injury that arises out of and in the course of his employment which injury was compensable under the Workmen's Compensation Act, and that appellant is barred by the provisions of such Act from bringing an independent action against respondent, although the aggravation of the industrial injury was due to incompetent medical attention and treatment supplied by respondent.

Section 2839, Revised Codes 1935, reads in part as follows: "Where both the employer and employee have elected to come under this act, the provisions of this act shall be exclusive, and such election shall be held to be a surrender by such employer and such employee, as between themselves, of their right to any other method, form or kind of compensation, or determination thereof, or to any other compensation, or kind of determination thereof, or cause of action, action at law, suit in equity, or *** common-law right or remedy, or proceeding whatever, for or on account of any personal injury to or death of such employee, except as such rights may be hereinafter specifically granted; and such election shall bind the employee himself, and in case of death shall bind his personal representative, and all persons having any right or claim to compensation for his injury or death, as well as the employer, and those conducting his business during liquidation, bankruptcy or insolvency. Provided, that whenever such employee shall receive an injury while performing the duties of his employment and such injury or injuries, so received by such employee, are caused by the act or omission of some persons or corporations other than his employer, and where the cause of such injury has no direct connection with his regular employment, and does not arise out of or necessarily follow as an incident thereof, then such employee, or in case of his death his heirs or personal representatives, shall, in addition to the right to receive compensation under the workmen's compensation act, have a right to prosecute any cause of action he may have for damages against such persons or corporations, causing such injury. In the event said employee shall prosecute an action for damages for or on account of such injuries so received, he shall not be deprived of his right to receive compensation but such compensation shall be received by him in addition to and independent of his right to bring action for such damages, provided, that in the event said employee, or in case of his death, his personal representative, shall bring such action, then the employer or insurance carrier paying such compensation shall be subrogated to the extent of one-half (1/2) of the gross amount received by such employee as compensation under the workmen's compensation law," etc.

Respondent in support of his position, relies on the case of Clark v. Olson, 96 Mont. 417, 31 P.2d 283, 286. In that case the plaintiff, a city employee, while working in the ordinary course of his duty as a street cleaner, was run over and severely injured by an automobile operated by the defendant, a third party. He received compensation under the Workmen's Compensation Act and then brought suit for damages for the negligence of the defendant, the third party. The court held that the Workmen's Compensation Act was exclusive, that he did not have an independent action against the third party tort-feasor and the only redress he had was under the Workmen's Compensation Act. The court said, quoting from Peet v. Mills, 76 Wash. 437, 136 P. 685, L.R.A.1916A, 358, Ann.Cas.1915D, 154: "For these reasons we are of the opinion that the compensation provided by the act in case of injury to any workman in any hazardous occupation was intended to be exclusive of every other remedy, and that all causes of action theretofore existing, except as they are saved by the provisos of the act, are done away with." Respondent cites many cases from other...