100 P.2d 75 | Mont. | 1940
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 *84 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 *85 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, secs. 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. *86
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 of 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 *87 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 its position, relies on the case ofClark v. Olson,
We do not believe respondent's position can be maintained under the rule laid down in the Clark v. Olson Case, supra, or in any of the cases relied on by respondent. The Clark v.Olson Case gives an able analysis of the Workmen's Compensation Act *88 before its amendment in 1933 pertaining to the facts set out therein, but the facts therein differ from the facts in the instant case, and its language has no application to the facts in the case at bar.
In the case of Fitzpatrick v. Fidelity Casualty Co. ofNew York,
Section 16 of the Workmen's Compensation Act, Henning's General Laws of California 1920, Hyatt, Part One, Third Edition, page 1557, reads as follows: "16. (a) Whenever the right to compensation under this Act would exist in favor of any employee, he shall, upon the written request of his employer, submit from time to time, as may be reasonable, to examination by a practicing physician, who shall be provided and paid for by the employer, and shall likewise submit to the examination from time to time by any physician selected by the commission or any member or referee thereof."
The respondent, in support of his contention that the Workmen's Compensation Act of Montana is exclusive, citesLincoln Park Coal Brick Co. v. Industrial Commission,
In the case of Ross v. Erickson Const. Co.,
"At the time the Industrial Insurance Law was passed, one who had been injured by or through the negligence of an employer could maintain an action and recover all damages proximately traceable to the primary negligence. If the master assumed to collect fees out of the wage of the employe for the *90 purpose of maintaining medical and surgical treatment and hospital service without deriving any profit therefrom, he was bound to exercise due care in providing a proper place for treatment and in selecting physicians and surgeons. A breach of this duty made him liable in damages for the malpractice of the physician or surgeon. * * * Clearly the purpose of the Act was to end all litigation growing out of, incident to, or resulting from the primary injury, and in lieu thereof give to the workman one recovery in the way of certain compensation, and to make the charge upon the contributing industries alone."
The court finally held that the Workmen's Compensation Act was exclusive and the damages would not lie against the defendants. It will be noted in this case that the employee, after having received the original injury, was taken to a hospital operated by the employer and which employer designated and hired the physician or surgeon to look after patients who were sent to it by the company, and that the company or employer deducted a portion of the wages of each employee for the purpose of maintaining said hospital and paying their physician or surgeon who looked after the patients sent to it by said employer.
In the case of Brown v. Sinclair Refining Co.,
Respondent contends with much vigor that the present physical condition of appellant is the result of an industrial accident and that the negligence of respondent and Mrs. Davison was not the proximate cause of the injury for which any action lies but such accident was an aggravation of the original or industrial injury. Many cases have been cited by respondent in support of this contention, but a careful examination of these authorities discloses, as shown by some of the cases heretofore referred to, that they are decisions from jurisdictions where the Compensation Act requires the employer to furnish medical aid and attention and the employee to submit himself to such medical attention and examination or where he submits to the employer's selected physician or surgeon.
It is alleged in the complaint that respondent voluntarily and gratuitously assumed to undertake to furnish medical aid and attention to the appellant and that when respondent did so voluntarily and gratuitously assume to render medical aid and attention to appellant, it then became and was the duty of respondent to use reasonable care and diligence in the selection of a physician or surgeon or competent person to render medical care and assistance of a kind and character designed to cure and relieve the condition of appellant's right eye. Appellant claims that the negligence for which respondent is liable is, that *92
in causing appellant to have this injured eye treated by a person not competent to do so and causing the incompetent person to[1] render her services to appellant. The law seems to be well settled that where, in the absence of a statute or contractual obligation, a master undertakes gratuitously to furnish medical attention to an employee or servant, he is bound to exercise reasonable care in the selection of a competent physician, and if, through his failure to exercise such care and diligence, the physician or surgeon selected is incompetent and unskillful and by reason of such unskillful treatment the employee or servant is injured, the employer is liable. (Crawford v. Davis,
In the case of Mueller v. Winston Bros.,
There was no duty imposed by statute or contractual obligation upon the respondent to render medical care or attention to appellant, but once having gratuitously assumed to render such services, respondent was bound to the exercise of reasonable care in the performance of the services so voluntarily assumed. When the respondent assumed gratuitously the obligation to give medical care and services to appellant it then became its duty to use reasonable care in the selection of a competent physician or surgeon or other competent or qualified person to render the kind of services and attention to the appellant's eye that *93
the same demanded. (Croghan v. Schwarzenbach,
In the case of Troutman's Admx. v. Louisville N.R. Co.,
In the case of Smith v. Mallinckrodt Chemical Works,
The duty to use reasonable care in the rendering of the service and attention to appellant by respondent arose not from any right to receive the service and attention but from the relation between the parties which the service makes. In the case of Edwin Tullgren, Administrator, v. Amoskeag Mfg. Co.,
In the case of Carey v. Davis,
It is contended by appellant that his action is not for damages for injuries arising out of and in the course of his employment, but that his action is one for damages for injuries by him suffered by reason of the negligent treatment received by him from respondent and Mrs. Davison. It is his contention that proper treatment of his injury would have resulted in the removal of the fragment of steel without permanent injury to his sight and that the loss of his eyesight can only be attributed to the negligence of respondent and not to the original injury.
In the case of Ruth v. Witherspoon-Englar Co.,
In the case of Ellamar Min. Co. of Alaska v. Possus (Circuit Court of Appeals, 9th Circuit, January 7, 1918), 247 Fed. 420, 422, the court in commenting on the phrase "arising out of and in the course of employment" said: "We are of the opinion that under the Act the plaintiff could not recover for aggravation to his injuries as pleaded in his second count. The Act limits recovery thereunder to cases of death or injury arising `out of and in the course of employment.' That phrase is one that is commonly used in workmen's compensation acts, and its meaning has been determined in numerous decisions. `This phrase embraces only those accidents which happen to a servant while he is engaged in the discharge of some function or duty which he is authorized to undertake, and which is calculated to further, directly or indirectly, the master's business.' (5 Labatt's Master and Servant, sec. 1806.) An injury arises out of the employment if there is a causal connection between the working conditions and the injury, and it must be possible to trace the injury to the nature of the employer's work, or to the risks to which the employer's business exposes the employe."
Again the principle contended for by appellant in the case at bar is strongly confirmed in the case of Ashby v. Davis Coal Coke Co.,
Quoting from 28 Ruling Case Law, pages 882, 883, section 119, it is said: "If for any reason the Compensation Act does not embrace the case of an employee who has sustained injury by reason of conduct on the part of his employer, an action may be maintained at law independently of the provisions of the statute. * * * Under some of the Acts it would seem that an action at law may be maintained for certain consequences of calamity, which are held not to be compensable by reason of the fact that they are not the `proximate result' of the occurrence; as, for example, incapacity attributable to improper medical or surgical treatment provided by the employer."
In the case of Borgeas v. Oregon etc. R. Co.,
Nothing can be found in the Workmen's Compensation Act that[2] would deprive the appellant of the right to bring this action. An examination of other provisions of the Act leads to but one conclusion and that is that it is intended to apply only to injuries sustained by an employee in the course of his employment, and as to a person injured "in the course of his employment," the Workmen's Compensation Act is exclusive unless falling under an exception provided by the Act. It was never intended or contemplated that an employer could hide behind the Compensation Act and thereby escape liability from his negligent or malicious acts toward an employee for an act having no connection with the course of employment. The contention of the respondent, that there is no liability at common law because of the Workmen's Compensation Act, is not predicated on negligence but only upon injuries arising out of and in the course of employment. Section 2836, Revised Codes of 1935 provides:
"In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense:
"(1) That the employee was negligent, unless such negligence was wilful;
"(2) That the injury was caused by the negligence of a fellow employee;
"(3) That the employee had assumed the risks inherent in, incident to, or arising out of his employment, or arising from the failure of the employer to provide and maintain a reasonably safe place to work, or reasonably safe tools or appliances."
The injuries sustained by appellant, according to the complaint, were out of the course of the employment, were inflicted by negligent treatment; that one of the joint tort-feasors was respondent is of no consequence in so far as the Workmen's Compensation Act is concerned. Appellant was not an employee of respondent after hours had elapsed and while away from the plant or premises of respondent. *100
In the case of Palko v. Taylor-McCoy Coal Coke Co.,
The Act does not require respondent to render medical aid or attention to appellant, but once having voluntarily and gratuitously assumed to render medical aid and assistance and having done so, respondent is held to the same measure of duty as any other person in the same situation. (See 18 R.C.L., p. 603, sec. 103; Crawford v. Davis,
In the case of Koppang v. Sevier,
At the time appellant sustained the injury to his right eye he was not employed by or working for respondent. He was not on the premises of respondent, but he was at a first aid station conducted and operated by respondent some distance from respondent's premises, in the charge of Mrs. Davison, who, at which place, rendered the services to and treated appellant's eye. Under the circumstances, can it be said that the injury is an "industrial injury", "arising out of" and "in the course of his employment"? It must be apparent that appellant's injury did not arise out of and in the course of his employment. These phrases have received consideration by many courts including this court. In Landeen v. Toole County Refining Co.,
"In order for claimants to recover, the facts must disclose that the injuries resulted from an industrial accident, arisingout of and in the course of their employment. As these terms are used conjunctively, and not disjunctively, in the statute, unless all three necessary elements are proved by a preponderance of the evidence, no liability rests upon the employer to pay compensation. (Wiggins v. Industrial Accident Board,
"The explosion, happening as it did, was an industrial accident. (Nicholson v. Roundup Coal Min. Co.,
These phrases, "arising out of" and "in the course of his employment" have received very careful consideration by the supreme court of Oregon, wherein it is said that the phrase "`arising out of' and `in the course of his employment' as used in the Workmen's Compensation Law should be given a broad and liberal construction." In the Brady v. Oregon Lumber Co.Case,
Our own court has considered these phrases in the case ofHerberson v. Great Falls Wood Coal Co.,
In the case of Isabelle v. J.H. Bode Co.,
"It is not sufficient to sustain an award that the employment occasioned the presence of the employee where the injury occurred. (Matter of Scholtzhauer v. C. L. Lunch Co.,
"The injury `must have been received while the employee was doing the work for which he was employed, and in addition thereto such injury must be a natural incident to the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence, and directly connected with the work. (Matter of Heitz v. Ruppert,
It seems clear that the cause of action set up in the complaint for the injury sustained at the hands of Mrs. Davison is entirely separate and distinct from the primary, industrial injury to appellant's eye. The industrial injury arose out of and was in the course of his employment, and as to this injury the Workmen's Compensation Act was exclusive. But the new injury caused by Mrs. Davison was not an industrial injury, nor did appellant's new injury arise out of and in the course of his, appellant's, employment. Could the Workmen's Compensation Act be construed to cover the new injury? The Act does not require the employer to furnish medical aid, and there is no hospital contract between appellant and respondent. In jurisdictions where the Act requires the employer to furnish medical aid, or where the employee submits to the employer's selected physician or surgeon, it has been held that the Workmen's Compensation Act is exclusive, on the theory, it would seem, that if *105 the employer is bound to furnish medical aid, or the employee submits to the employer's selected physician, then the employer should be protected and the Compensation Fund should pay the employee for any additional or new injury sustained. In our opinion the Workmen's Compensation Act of Montana cannot be so construed.
It has been suggested that section 2909, Revised Codes, in[3] effect condemns the alleged cause of action here. That section in substance provides that the employer shall not be liable for any act in connection with the treatment or malpractice in the treatment of any injuries sustained by an employee. This contention overlooks the gravamen of appellant's alleged cause of action. As above pointed out, the action is grounded upon negligence of the respondent in selecting and employing an unskilled and incompetent person to care for injured employees. The action is not based upon malpractice in any sense of the term. Appellant's recovery, if one is allowed, must rest upon proof of a want of care on the part of respondent in selecting the attendant. Proof of the acts of the attendant resulting in injuries will only become admissible to show that the negligence in employing an unskilled and incompetent attendant was the proximate cause of the aggravated injuries to appellant.
We therefore hold that under the facts alleged in the complaint, the Workmen's Compensation Act is not exclusive, and that the complaint states a cause of action.
The judgment is reversed and the cause remanded with directions to the trial court to overrule the demurrer and to grant leave to respondent to file answer to the complaint.
ASSOCIATE JUSTICES MORRIS, ANGSTMAN, ARNOLD and ERICKSON concur.
Rehearing denied March 20, 1940. *106