275 N.W. 358 | S.D. | 1937
This is an action at law to recover the value of plaintiff's services as a physician. The trial court submitted the case to the jury and the jury returned a verdict in favor of the plaintiff. The defendant has appealed from the judgment entered.
The facts disclose that the plaintiff is a physician living in the town of Hartford, S.D. The defendant operates a power company in the vicinity of Hartford. One Lawrence Severson was employed by the defendant and, while in its employ and in the discharge of his duties, suffered an injury. The plaintiff was called to treat and care for Severson. Mr. Preston, who was the district manager of the defendant company, had on prior occasions employed plaintiff to take care of injured employees. Shortly after the plaintiff commenced treating Mr. Severson for his injuries, Mr. Preston called plaintiff over the telephone and asked that he come to plaintiff's office. It was impossible for the plaintiff to go to his office at that time and then Mr. Preston inquired concerning *495 Mr. Severson. In answer to this inquiry the plaintiff replied that Severson was quite sick and said: "I may have to take him to the hospital." In reply to this statement Mr. Preston advised plaintiff as follows: "Well, you do whatever is necessary to take care of him." The defendant company and the employee, Severson, at the time in question were operating under the Workmen's Compensation Law of this state (section 9436 to 9491, R.C. 1919, and acts amendatory thereto).
[1] Appellant's first assignment of error questions the jurisdiction of the court. Appellant contends that the circuit court had no jurisdiction in this case for the reason that the defendant was operating under the Workmen's Compensation Law of this state, and that the industrial commissioner had exclusive jurisdiction. We are unable to agree with this contention of respondent. It is true that as between employer and employee the remedy under the Workmen's Compensation Act is exclusive. Freese v. Morrell Co.,
[2] Appellant contends that section 9477, R.C. 1919, which provides that "fees of * * * physicians for service under this article shall be subject to the approval of the industrial commissioner," indicates that the only remedy of this physician is to have his claim passed upon by the industrial commissioner. We are of the opinion that this section has no reference to a contract of employment between a physician and employer. The justification for similar provisions found in workmen's compensation acts is to be found in the police power of the states, on the theory that the public has an interest in seeing that the employee's compensation is not dissipated by the payment of excessive fees. May v. Chas. Hoertz Son, et al.,
[3, 4] Appellant next contends that the evidence fails to disclose any contract between plaintiff and defendant sufficient upon which to predicate a recovery in this case. Appellant relies principally upon the case of Shirley v. Madsen,
The judgment appealed from is affirmed.
POLLEY, ROBERTS, and SMITH, JJ., concur.
WARREN, J., dissents. *498