Hanson v. Norton

See case details

A. W. HANSON, Appellant, v. W. H. NORTON

103 S. W. (2d) 1

Division One

March 17, 1937

to the limit of his capacity. One, however, does not become a pub-lic carrier because he is engaged exclusively in transporting per-sons or property or because the person or persons whom he servestake all his facilities. The test is whether he has invited the tradeof the public.” [

Klawansky v. Public Service Commission, 187 Atl. 248.] But, “the public does not mean everybody all thetime.” [

Spontak v. Public Service Comm., 73 Pa. Super. 219, l. c. 221, citing

Peck v. Tribune Co., 214 U. S. 185.] If the car-rier carries goods as a public employment, undertaking to carrygoods for persons generally, and holds himself out to the publicas ready to engage in that business as a business, and not as acasual occupation, he comes within the definition of a common car-rier. [Story on Bailments, sec: 495.]

Under the admitted facts in relation to the nature of Goldstein‘sbusiness, as set out in his bill filed in the circuit court, we are con-strained to hold that he is amenable to the Bus and Truck Act, asa common carrier. The preliminary rule in prohibition should bemade absolute; and it is so ordered. All concur.

Bass & Bass and John Grossman for appellant.

Woodward & Evans for respondent.

BRADLEY, C.—This is a common-law action to recover damagesfor alleged malpractice of the defendant, who is a physician andsurgeon, practicing in St. Louis, Missouri. The trial court sus-tained defendant‘s motion for a judgment on the pleadings, en-tered judgment accordingly and plaintiff appealed.

Plaintiff alleged that in an accident, March 12, 1930, his rightarm, shoulder and wrist were injured and that he employed defend-ant to treat him; that defendant was negligent in the treatmentand that as a result of the alleged negligent treatment plaintiff‘sarm, wrist and shoulder grew “permanently stiff and plaintiff hasthereby lost the use of same and the same has been left in a de-formed condition.” Plaintiff asked judgment for $50,000. In viewof the issue presented it is not necessary to say more of the petition.

In the answer defendant alleged that at the time of the accidentmentioned in plaintiff‘s petition, plaintiff was in the employ ofthe Carter Carbureter Company; that plaintiff and his employerwere operating under the terms and provisions of the Missouri Work-men‘s Compensation Act; that plaintiff on March 12, 1930, sus-tained accidental injuries “arising out of and in the course ofhis employment and thereupon became and was entitled to com-pensation; that as a part of said compensation defendant was em-ployed by plaintiff‘s employer and its insurer to render medical andsurgical treatment to plaintiff for and on account of said accidentalinjuries;” that all the treatment rendered by defendant was at therequest and direction of plaintiff‘s employer and the insurer; thathe did not treat plaintiff as a private patient and that he was notnegligent in the treatment; that thereafter plaintiff filed a claim forcompensation and that the claim was heard before the CompensationCommission; that the commission made its final award “wherebyplaintiff was allowed compensation based upon the full extent of hisdisability; that said award was made after defendant had com-pleted whatever treatment he rendered to plaintiff.” Defendantfurther alleged “that the very injuries and disability for which plain-tiff received compensation under said final award are the same in-juries and disability for which plaintiff now seeks recovery in thiscase; that the compensation allowed plaintiff in the award of theCompensation Commission has been fully paid and that by reasonof said payments plaintiff has received full and complete satisfac-tion for said alleged injuries and disability and is fully and for-ever barred from recovering in this action.”

In the reply plaintiff admits that at the time of the accident,March 12, 1930, he and his employer were operating under theMissouri Workmen‘s Compensation Law; admits that the accidentarose out of and in the course of his employment and that he wasentitled to and received compensation and “admits that as a part ofsaid compensation that defendant rendered medical and surgicaltreatment to plaintiff for and on account of said accidental injuries,and that all of the treatment received by plaintiff was at the re-quest and direction of said employer and its insurer, and that plain-tiff was not treated as a private patient; admits that thereafter aclaim for compensation was filed by plaintiff on account of hisdisability and that the Compensation Commission rendered its finalaward whereby plaintiff was allowed compensation based upon thedisability suffered therefrom, and that said award was made afterthe defendant had completed treatment rendered to plaintiff.”

Further replying, plaintiff states “that he has not been compen-sated for the pain and suffering, and anguish of mind and nervousshock directly and proximately caused by defendant‘s negligenttreatment as alleged and set forth in plaintiff‘s petition; that he hasnot been compensated for any permanent injury or deformity, mor-tification, disfigurement or future power to earn wages, all of whichis set forth in plaintiff‘s petition.”

The question presented is stated in plaintiff‘s brief as follows:“The sole question presented by this appeal is whether or not aninjured workman may recover damages against a physician formalpractice, even though and after the workman has recovered com-pensation on account of injuries sustained by him in the courseof his employment, and even though he has been compensated bycompensation for the aggravation of his injuries caused by thenegligent treatment of the physician.” Defendant agrees that thesole question here is as stated.

Plaintiff relies upon the exception clause in Section 3301, Re-vised Statutes 1929 (Mo. Stat. Ann., sec. 3301, p. 8232), of theWorkmen‘s Compensation Act. This section, so far as pertinenthere, reads: “If both employer and employee have elected to acceptthe provisions of this chapter, the employer shall be liable irrespec-tive of negligence to furnish compensation under the provisions ofthis chapter for personal injury or death of the employee by accidentarising out of and in the course of his employment, and shall bereleased from all other liability therefor whatsoever, whether tothe employee or any other person. The rights and remedies hereingranted to an employee, shall exclude all other rights and rem-edies of such employee, his wife, her husband, parents, personal rep-resentatives, dependents, heirs or next kin, at common law or other-wise, on account of such accidental injury or death, except such rightsand remedies as are not provided for by this chapter.” (Italicsours.)

Plaintiff contends that the exception clause was intended to pro-vide for such situation as here, and to support this contention cites

Parchefsky v. Kroll Bros. (N. Y.), 196 N. E. 308;

Hoehn v.Schenck, 223 N. Y. Supp. 418;

White v. Matthews, 223 N. Y. Supp. 415;

Greenstein v. Fornell (N. Y.), 143 Misc. 880;

Viita v. Dolan et al. (Minn.), 155 N. W. 1077;

Smith v. Golden State Hospital, 111 Cal. App. 667;

Hoffman v. Houston Clinic (Tex. Civ. App.), 41 S. W. (2d) 134;

Pedigo & Pedigo v. Croom (Tex. Civ. App.), 37 S. W. (2d) 1074. Also, plaintiff cites

Parkell v. Fitzporter et al., 301 Mo. 217, 256 S. W. 239, and

Staehlin v. Hochdoerfer (Mo.), 235 S. W. 1060.

The decisive point ruled in the Parkell case, a common-law ac-tion, was that a recovery and satisfaction thereof for the originalinjuries caused by the negligent operation of an automobile by aphysician would not bar a second action against the same physicianand another for malpractice in treating the original injury. TheStaehlin case was a common-law action for damages for alleged mal-practice. On the same day the malpractice suit was filed, plaintifffiled a common-law action against his employer to recover for theinjuries alleged in the malpractice case to have been negligentlytreated. Later, plaintiff commenced a second action at common lawagainst his employer. Then he had three suits pending, two againsthis employer and one against his physician. In this situation, plain-tiff settled his first suit against his employer for $1300 and dis-missed the same, executing a receipt or release, reciting that theemployer was released and discharged “from all claims of what-soever kind and nature growing out of or in any wise connected withan injury sustained by him while in its employ.” On the same day,“and evidently as a part of the same transaction,” plaintiff dis-missed the second suit against his employer and received $50, andreceipted therefor. Defendant in the malpractice suit pleaded as abar the facts relative to the two suits against the employer. Thereply in the malpractice suit put in issue the affirmative defensespleaded. The malpractice suit proceeded to trial and at the be-ginning thereof and while plaintiff was on the stand, he admittedthe execution of the two receipts. Defendant then offered in evi-dence “the two papers and petitions in the suits to which they re-spectively referred,” and moved for a directed verdict, which wasgranted and plaintiff appealed from the judgment entered. Thejudgment was reversed and the cause remanded. It was held (

235 S. W. l. c. 1063) that the receipt or release in the first suit againstthe employer was only “an acknowledgment of satisfaction for theoriginal injury,” and that the second receipt, in effect, was “acovenant not to sue” the employer “for the loss of the leg,” thatis, for the loss due to the alleged malpractice. Neither the Parkellcase nor the Staehlin case support plaintiff‘s theory in the presentcase, because, in neither of those cases, damages resulting from thealleged malpractice were not included in the dispositions made,while the contrary is true here. The other cases cited by plaintiffconcern the application of the Compensation Law of the states oftheir origin to the facts involved.

It will be noted that Section 3301 contains what has beentermed a release clause, an exclusion clause and an exception clause.By the exclusion clause “the rights and remedies” given an em-ployee under the Compensation Law excludes “all other rights andremedies of such employee, his wife, her husband, parents, personalrepresentatives, dependents, heirs or next kin, at common law orotherwise.” In

Sharp v. Producers’ Produce Co., 226 Mo. App.189, 47 S. W. (2d) 242, a husband sought to recover damages in acommon-law action for loss of services, companionship, etc., of hiswife, resulting from injuries she received while employed in thedefendant‘s packing plant. The wife, as an employee, had re-ceived from her employer, compensation under the CompensationLaw, and the answer pleaded the facts relative thereto. The trialcourt sustained defendant‘s motion for a judgment on the pleadings,and on appeal the trial court was sustained. The sole question was“whether or not the husband‘s common-law right to recover dam-ages for loss of the services and consortium of his wife, resultingfrom defendant‘s negligence, is lost by reason of her having receivedcompensation under the Workmen‘s Compensation Law of thisState.” Judge BAILEY, speaking for the Springfield Court of Ap-peals, held that the release clause and the exclusion clause of Sec-tion 3301, barred the plaintiff‘s common-law right of action for theloss of services, etc., of his wife. The Court of Appeals, of theexception clause, said: “Recognizing the rule that different por-tions of an act should be harmonized, if possible, we think the ex-ception clause referred to other portions of the act which by theirterms do not ‘provide for’ the ‘employee, his wife, her husband,parents,’ etc. Section 5 of the act (R. S. 1929, sec. 3303) providesthat it shall not apply to employments by the State of farm labor,employment not on the premises of the employer, and certain em-ployments by minor employers. Section 7 (Sec. 3305) makes theact inapplicable to employees whose salaries exceed $3600 per year.There are also provisions excluding employees who have contractedoccupational diseases (Sec. 7) or engaged in interstate commerce[Sec. 12 (Sec. 3310)]. While it may be said the exception clausewas unnecessary, if intended to apply to the last-mentioned pro-visions of the statute, it can readily be understood that the Legis-lature would insert such a clause in order to harmonize all sectionsof the act. Whatever actuated the Legislature in making use of thisexception clause, we are certain it was not intended thereby topreserve the common-law rights of the husband contrary to otherexpress provisions of the act and in opposition to the evident in-tent of the Legislature as indicated by the title to the act.”

Holder v. Elms Hotel Company, 338 Mo. 857, 92 S. W. (2d) 620,was identical in principle to the Sharp case, and this court (Divi-sion Two) quoted in extenso and with approval from the Sharp case,and included in the portion quoted with approval, was the above-quoted excerpt from the Sharp case as to what the exception clausehas reference.

Defendant in the present case contends that where an employeehas been awarded full compensation under the Compensation Lawfor his injuries and disability, including aggravation caused by mal-practice of a physician, he cannot maintain a separate common-lawaction against the negligent physician. In support of this con-tention the following authorities are cited:

Roman v. Smith, 42Fed. (2d) 931;

Sarber v. Insurance Company, 23 Fed. (2d) 434;

Wesley v. Allen, 235 Ill. App. 322;

Paine v. Wyatt (Iowa), 251N. W. 78;

Vatalaro v. Thomas, 262 Mass. 383, 160 N. E. 269;

Mc-Donald v. Employers’ Liability Corp. (Mass.), 192 N. E. 608;

Par-chefsky v. Kroll Bros., 267 N. Y. 410, 196 N. E. 308;

Hoover v.Globe Indemnity Co. et al., 202 N. C. 655, 163 S. E. 758;

Polucha v.Landes, 60 N. D. 159, 233 N. W. 264;

Revell v. McCaughan, 162Tenn. 532, 39 S. W. (2d) 269;

Kirby Lumber Co. v. Ellison (Tex.Civ. App.), 270 S. W. 920;

Ross v. Erickson Const. Co. et al., 89Wash. 634, 155 Pac. 153;

Nall v. Utilities Co., 224 Ala. 33, 138 So.411;

Markley v. White (Okla.), 32 Pac. (2d) 716;

Hinkelman v.Steel Corp. et al. (W. Va.), 171 S. E. 538.

We do not deem it necessary to analyze these cases. In view ofthe ruling in the Sharp and Holder cases, supra, as to the meaningof the exception clause in Section 3301, Revised Statutes 1929, wethink the question here may be determined from the authorities inour own jurisdiction.

In

Hughes v. Maryland Casualty Co., 229 Mo. App. 472, 76 S.W. (2d) 1101, the plaintiff received an injury to his left eye whileemployed by the Hoffman Construction Company. The employerand its insurer, the defendant Casualty Company, furnished medicaland surgical treatment as provided by Section 3311, Revised Stat-utes 1929 (Sec. 3311, Mo. Stat. Ann., p. 8246). The plaintiff filedclaim for and was awarded compensation by the CompensationCommission, which compensation was paid in full by the employer‘sinsurer, the defendant. When the balance of the final award waspaid by the insurer, the plaintiff signed the final report and a re-ceipt for the compensation. It was recited in the receipt that itwas in full release and discharge of the insurer as well as of theemployer “of all liability” under the Compensation Act. Notwith-standing the proceedings for compensation under the CompensationAct, the plaintiff brought suit against the insurer, Maryland Cas-ualty Company, alleging that the accident to his eye rendered activea trachoma condition of his eyes, which condition had theretoforecaused him no damage; that the defendant, the insurer of his em-ployer, undertook the treatment of his eyes and employed physi-cians for that purpose; that these physicians, alleged to be the agentsof the defendant, failed to properly advise him and negligentlyoperated on his eye and negligently discharged him when he was notcured. The answer pleaded the proceedings before the Compensa-tion Commission, the temporary and final awards of the commis-sion, the payment of the awards; that the commission had exclusivejurisdiction to pass on the claim “set out in plaintiff‘s petition;“that plaintiff submitted his claim to the commission and acceptedits award. Also the answer pleaded the release signed by plaintiff.

Plaintiff Hughes recovered a judgment in the trial court and onappeal it was contended by the defendant that its request for adirected verdict at the close of the case should have been given.The Kansas City Court of Appeals held that plaintiff could notmaintain the suit, and in the course of the opinion, said: “Whilethe theory of the compensation is not recovery based upon negligenceor wrongful act of the employer, but wholly upon the fact of theemployment, yet, the overwhelming weight of authority in thiscountry is to the effect that in compensation cases the malpracticeof the physician selected by the employer to treat the injuries ofthe employee is directly traceable to and the proximate result of theprimary injury for which the injured workman is being treated andif his injuries are aggravated by the negligence of the physician,compensation for such aggravation must be procured in the pro-ceedings provided for in the act.” A great number of cases fromother jurisdictions are cited in support of the above statement ofthe Court of Appeals.

The court, in Hughes v. Maryland Cas. Co., set out (

76 S. W.(2d) l. c. 1103) the exclusion and exception clauses of Section 3301,Revised Statutes 1929, and ruled that it was apparent (from thestatute) ‘that if plaintiff did or could have recovered in the pro-ceeding before the Compensation Commission for the damages donehim for the alleged malpractice of the physicians, he cannot maintainthis suit.” And it is further stated in the Hughes case that “ifplaintiff is contending that the Compensation Act does not providea full and complete remedy for the injury sustained and that Sec-tion 3301 preserves the right to the employee to sue at common lawfor pain and suffering, then we must rule the contention against him.Perhaps all sociologists agree that the Compensation Act affords aremedy to the employee far greater than that given him by thecommon law. The legal profession differs in its views upon thissubject. However, the subject does not afford a fruitful field forinvestigation on our part, as the Legislature has spoken by theenactment itself.”

The present case is different from the Hughes case in that, inthe present case the suit is against the alleged negligent physician,while in the Hughes case, the suit was against the employer‘s in-surer to recover damages because of the alleged negligence of thephysicians employed by the insurer. The defendant insurer in theHughes case was primarily liable under the Compensation Act (Sec.3325, R. S. 1929, Sec. 3325, Mo. Stat. Ann., p. 8262) to Hughes, andtherefore, was not and could not be a third person under Section3309, Revised Statutes 1929 (Sec. 3309, Mo. Stat. Ann., p. 8244),and this because a third person under the Compensation Act “isone upon whom no liability could be entailed under the act.” [

Hughes v. Maryland Cas. Co., supra;

Sylcox v. National Lead Co.,225 Mo. App. 543, 38 S. W. (2d) 497, l. c. 501.]

So far as we have been able to ascertain in all the cases in thisState, actions against third persons, permitted under the Compen-sation Act (Sec. 3309), have been against the person who committed,or who was responsible for the commission of the original act, re-sulting in the injury for which compensation has been awarded, andwe are of the opinion that in order for a wrongdoer to be a thirdperson against whom an action may be maintained by the injuredparty, after such injured party has received full compensation un-der the Compensation Act, such person must be the one who com-mitted, or is responsible for the commission of the act that resultedin the original injury. [

Paine v. Wyatt (Iowa), 251 N. W. 78.]Under such construction, defendant in the present case, is not athird person under Section 3309, not only because he was not pri-marily liable under the act, but because he did not commit theoriginal act which resulted in the original injury. This is not inconflict with anything that is said in

Parkell v. Fitzporter and

Staehlin v. Hochdoerfer, supra, because the Compensation Act wasnot involved in either of those cases. Defendant‘s act in the pres-ent case was the alleged malpractice which aggravated the originalinjury, and it is conceded by plaintiff that he received in the com-pensation proceedings not only compensation for the original injury,but “for the aggravation of his injuries caused by the negligenceof the physician,” defendant here.

The universal rule at common law is that when an injuredparty has received full satisfaction for his injury, from one wrong-doer, whether the injury was caused by one or more, each of whommay be severally liable, he is barred from further recovery from theother tort-feasors. [

Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389,41 S. W. (2d) 543;

Gerber v. Kansas City, 311 Mo. 49, 277 S. W.562, l. c. 564;

Myers v. Kennedy, 306 Mo. 268, 267 S. W. 810, l. c.815;

Abbott v. City of Senath (Mo.), 243 S. W. 641;

Dulaney v.Buffum, 173 Mo. 1, 73 S. W. 125.]

We shall briefly refer to one of the many cases cited by de-fendant in the brief, which case we have cited, supra,

Paine v. Wyatt,251 N. W. 78, which in principle is on all fours with the present case.In the Paine case it appears that the plaintiff was injured whilein the employ of the Oliver Farm Equipment Sales Company, andunder such circumstances as to entitle him to compensation underthe Iowa Compensation Law. The defendant, Wyatt, a physician,treated the injuries received. The suit was to recover for allegedmalpractice. The answer pleaded that plaintiff had received “fullsatisfaction” under the Compensation Law. To the defense pleadedplaintiff filed demurrer, which was overruled, and plaintiff appealed.It was held, as reflected in headnote 5 (

251 N. W. 78), that an “in-jured employee who received compensation under compensation actcould not sue physician for alleged aggravation of injuries, sincepayment under compensation act effected accord and satisfaction.”

Since the defendant physician in the present case is not a thirdparty under Section 3309, Revised Statutes 1929, and since plain-tiff concedes that he has received full compensation for his originalinjury and “for the aggravation of his injuries caused by the neg-ligent treatment by the defendant,” it is our conclusion that he isbarred from maintaining this cause, and that the trial court ruledcorrectly in sustaining defendant‘s motion for judgment on thepleadings.

The judgment should be affirmed and it is so ordered. Ferguson,and Hyde, CC., concur.

PER CURIAM: The foregoing opinion by BRADLEY, C., is adopt-ed as the opinion of the court. All the judges concur.

MISSOURI POWER & LIGHT COMPANY, Appellant, v. ONIE E. THOMAS ET AL.

102 S. W. (2d) 564

Division One

March 17, 1937

Case Details

Case Name: Hanson v. Norton

Court Name: Supreme Court of Missouri

Date Published: Mar 17, 1937

Citation: 103 S.W.2d 1

Court Abbreviation: Mo.