Jones v. Laird Foundation, Inc. , 156 W. Va. 479 ( 1973 )

Neely, Judge:

This case is an appeal by plaintiffs below from a final order of summary judgment by the Circuit Court of Fayette County entered in June 1971. The pleadings show that in April 1969, the plaintiff, Lewis Jones, was injured while working for the Cannelton Coal Co. and was hospitalized under the care of defendant physician, Segundo Sanchez, who was neither an agent nor employee of plaintiff’s employer, the Cannelton Coal Co.

The plaintiff alleges that after he was released from care by Dr. Sanchez he returned to work in September 1969, but that the original injury had not been treated properly, causing discomfort and pain, and that corrective measures were advised by other physicians. Corrective measures, requiring hospitalization and bone graft surgery, were performed in 1970. The plaintiff received Workmen’s Compensation benefits, including weekly compensation and payment for medical and hospital expenses, for treatment of both the original injury and the subsequent hospitalization and bone graft corrective surgery.

The facts of this case are almost identical to those presented in the landmark case of Makarenko v. Scott, 132 W.Va. 430, 55 S.E.2d 88 (1949) in which plaintiff, Alexander Makarenko, sought to recover damages from the defendants, Dr. W. W. Scott and Williamson Memorial Hospital, for personal injuries which he claimed were the result of Dr. Scott’s negligent and unskillful treatment of an original, employment connected injury. In Makarenko, as in this case, the doctor was not a fellow employee of plaintiff. Also, as in this case, plaintiff was entitled to Workmen’s Compensation benefits for both the original employment related injury and any later aggravations of the original injury.

In Makarenko this Court held that the common-law principle that a man is entitled to but one recovery for any wrong bars a separate action against a physician who negligently treats an injury covered under the Workmen’s Compensation law. The Court reasoned that as both the original injury and the later aggravation are compensable, the claimant receives a full recovery from the Fund for both injuries. This bars an action in tort against the doctor or hospital for damages.

In Makarenko, this Court said in the syllabus, point 1:

“When a person sustains a personal injury, caused by the negligence of a wrongdoer, or the injury received is such as entitles the injured person to an award of compensation under the workmen’s compensation law of this State, and the injured person exercises reasonable care in the selection of a competent physician and hospital to treat him for such injury, which is aggravated by the negligent or unskillful treatment rendered by them, he can not, as a general rule, maintain an action against such physician or hospital for damages which result from the aggravation of the original injury. In each case the law regards the aggravation as a part of the immediate and direct damages which naturally flow from the original injury.”

Based upon the principle of stare decisis and in accord with Makarenko, the Circuit Court of Fayette County granted summary judgment to the defendants in this case. We granted a writ of appeal and error for the purpose of reviewing the propositions of law enunciated in Makarenko, as review seemed justified under the persuasive dissenting opinions of two judges in the Makarenko case.

This Court is of the opinion that the holding of Makarenko was not the law of this State before its articulation in 1949, and further, that the holding in Makarenko is in dissonance with decisions in related areas of law written after 1949. Therefore, Makarenko is an aberration in the common-law of this State, and we hereby expressly overrule its holding in its entirety and commend even its lingering memory to oblivion.

The fundamental error in logic made in the Makarenko decision was to conceive of the employee’s claim against the Workmen’s Compensation Fund as a cause of action arising ex delicto, rather than as a cause of action arising ex contractu. The right of an employee to recover under Workmen’s Compensation is based upon the status of the employee and not the negligence of the employer,’ Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S. Ct. 153, 68 L. Ed. 366, (1923). Workmen’s Compensation is contractual in nature, as the provisions of the Workmen’s Compensation Act become an integral part of the contract of employment between the employer and employee. Lancaster v. Compensation Commissioner, 125 W.Va. 190, 23 S.E.2d 601 (1942). Common-law rules regulating the assessment of damages in actions ex delicto do not apply to claims under Workmen’s Compensation, as the compensation award depends entirely on the severity of the injury and the employee’s wage at the time of the accident, and not upon the amount of common-law damage done to the employee or his dependents.

In Makarenko the Court apparently disregarded the long established principle in this State that Workmen’s Compensation is to be regarded as a collateral source of benefits, and that compensation is therefore not to be considered in mitigation of damages in an action against a third party tort-feasor. We believe that the Court’s distinction in Makarenko between joint tort-feasors and successive tort-feasors is without sufficient logical foundation. In the case of Merrill v. Marietta Torpedo Co., 79 W.Va. 669, 92 S.E. 112 (1917), decided long before Makarenko, the Court expressly placed Workmen’s Compensation awards within the familiar “Collateral Source Rule.” 25 C.J.S. Damages § 99(1-3). Therefore Workmen’s Compensation is no more a proper consideration in mitigation of damages than health or accident insurance.

In Merrill the Court said at page 679:

“* * * If the employe is injured in the course of his employment he is entitled to compensation out of the fund, whether his injury was occasioned by the negligence of the master or not; if occasioned by the negligence of a third person his right to compensation out of the fund is not thereby affected, nor is his right of action against such third person causing the injury impaired. The provision of the act is somewhat in the nature of life and accident insurance. That a person may be protected by accident insurance, and at the same time have right of action against the person whose negligence produced the accident resulting in his injury, is well settled.”

This Court does not believe that Merrill can logically be distinguished from Makarenko on its facts, as the distinction between joint tort-feasors and successive tort-feasors is illusive.

The Makarenko opinion attempted to distinguish Tawney v. Kirkhart, 130 W.Va. 550, 44 S.E.2d 634 (1947), from the facts in the Makarenko case. In Tawney, plaintiff’s decedent was an employee of a subscriber to the Fund. Plaintiff instituted an action for damages against a railroad company and plaintiff’s decedent’s fellow employee for wrongful death caused jointly by both defendants. Tawney involved the liability of a fellow employee, and this Court rejected the contention of the defendant fellow employee that because both he and the deceased were employees of the same employer, who was a subscriber to the Fund, that defendant was protected by the umbrella of the Fund from liability for his own negligence.

The Tawney case in turn, expressly overruled Hinkelman v. Wheeling Steel Corporation, 114 W.Va. 269, 171 S.E. 538 (1933), which had held that a company doctor was not liable for the aggravation of injuries to a fellow employee when both the doctor and the employee were employed by the same employer who was a subscriber to the Fund. The logic in Tawney which compelled the overruling of Hinkelman should also have dictated an opposite result in Makarenko.

When the Tawney case expressly overruled Hinkelman, it established the law in this State that an empoyee covered by the Workmen’s Compensation Fund can recover from a doctor for negligent aggravation of his injuries, even if that doctor is a fellow employee. However, in 1949, after the decision in Makarenko, the West Virginia Legislature amended the Workmen’s Compensation Act to exempt from liability officers, managers, agents, representatives, and employees of subscribing employers. Chapter 23, Article 2, Section 6a, Code of West Virginia, 1931, as amended.

This amendment changed the application of Tawney with regard to fellow employees, but in so doing, it did not reinforce the general logic of Hinkelman, but merely recognized the specific result in Hinkelman by statute. Since this last extension of immunity in 1949, the total statutory grant of immunity is clear and unambiguous. With the exception of those persons erroneously added by decisional law through the narrow factual situation of Makarenko, the general rule is that those persons not expressly granted immunity from suit by the Workmen’s Compensation Law are subject to common-law suit for damages. Therefore as to all persons not within the class protected by Code 23-2-6a, Tawney still reflects the correct law.

The Makarenko opinion also attempted to distinguish joint tort-feasors from successive tort-feasors, although the Court did not use the phrase “successive tort-feasors”. Chapter 55, Article 7, Section 12 of the Code of West Virginia, 1931, specifically provides that a release of one joint tort-feasor shall not bar an action against the other. Code 55-7-12 says:

“A release to, or an accord and satisfaction with, one or more joint trespassers, or tort-feasors, shall not inure to the benefit of another such trespasser, or tort-feasor, and shall be no bar to an action or suit against such other joint trespasser, or tort-feasor, for the same cause of action to which the release or accord and satisfaction relates.”

There is no logical reason why the policy expressed in Code 55-7-12 regarding joint tort-feasors should not also apply to successive tort-feasors. Whether recovery against one tort-feasor is barred by a release or accord and satisfaction with respect to another should not depend upon the linguistic characterization of a wrong as a “joint,” as opposed to a “successive,” tort. Linguistic distinctions of this type impose an impossible burden on the discretion of a court.

In the case of Jones v. Appalachian Power Co., 145 W.Va. 478, 115 S.E.2d 129 (1960), decided after the Makarenko case, this Court again applied the collateral source rule to benefits derived under Workmen’s Compensation in a joint tort situation. In Jones the plaintiff’s decedent was killed when the boom of a crane touched an overhead uninsulated electric line of the defendant power company. At the time of the accident plaintiff’s decedent, employed by the crane operator, was pulling on a wire rope, or chain, which was connected to the boom of the crane. Plaintiff sued and recovered from the defendant power company although plaintiff’s decedent was covered under Workmen’s Compensation. This Court held that compensation benefits could not be considered by the jury in mitigation of plaintiff’s damages in an action against the power company. At page 488 the Court said:

“The cases cited in the footnotes support the language heretofore quoted by this Court in the Merrill case [Merrill v. Marietta Torpedo Co., 79 W.Va. 669, 92 S.E. 112 (1917) ] that the claim of an employee or the dependent of a deceased employee against the employer for compensation benefits and the claim of either against a third party tort-feasor are different in kind. The first is solely for statutory benefits and the second results from common law liability. Under the provisions of Chapter 23 of the West Virginia Code, entitled Workmen’s Compensation, the relationship between the employer who is a subscriber to the fund and his employee is one of implied contract. The employer agrees that his injured employees may be compensated for injuries sustained in the course of and as a result of their employment without regard to negligence except in certain instances not here material. Thus the language in the Brewer case that: * * It is also well settled that “Partial satisfaction of the injured person by one joint tort-feasor is a satisfaction, pro tanto, as to all.” * * *’ is a correct statement of the law but it is inapplicable where a plaintiff has received compensation from a collateral source such as workmen’s compensation benefits, accident and health insurance, or otherwise. Trumbull Cliffs Furnace Co. v. Shachovsky (Ohio-1924), 146 N.E. 306 citing Newark Paving Co. v. Klotz (N.J.), 91 A. 91; Mercer v. Ott, 78 W.Va. 629, 89 S.E. 952; Merrill v. Marietta Torpedo Co., 79 W.Va. 669, 92 S.E. 112, L.R.A. 1917F, 1043; and Shearman & Redfield, Negligence (6th Ed.), sec. 765.”

This Court believes that our action today in overruling Makarenko v. Scott in no way articulates a new principle of law. Rather we believe that Makarenko was a departure from the established common-law of this State. We overrule Makarenko because it was a mutation in one limited area of tort law, which has jeopardized consistent legal reasoning in every other area of tort law since 1949.

While the forms of procedure require that this Court reverse the Circuit Court of Fayette County, we recognize that the learned Circuit Judge correctly applied the principles of law as established by this Court, and that, in substance, the onus of reversal is upon ourselves and not upon the Circuit Court. Accordingly the summary judgment in favor of defendants is reversed, and the case is remanded to the Circuit Court of Fayette County with directions to proceed to trial on the merits in conformity with this opinion.

Reversed and remanded with directions.