McGough v. McCarthy Improvement Co.

Since this cause was originally heard and determined relators' petition for reargument has brought about a reconsideration of the entire case and active participation therein by all the members of the court. We have been greatly benefited by the searching dissent written by Mr. Justice Stone. Our attention has been directed most forcefully thereby to whatever there was of error or weakness in the original opinion. The value of participation by all the members of the court in every doubtful case is apparent here. That this case is of the doubtful variety is equally clear.

Numerous cases have reached this court under the compensation act and more particularly under part 2 thereof. Perhaps there are inconsistencies amongst them, but we think certain fundamental principles have been established as to which there is not now room for disagreement. If the employe's "injury or death is caused * * * by accident arising out of and in the course of his employment," he is, as a matter of law, entitled to the benefits and advantages provided by the act. The employer and his insurer must meet these. This is so because the moment the relationship of employer-employe comes into being there also "arises a statutory contract relation between them." The employe's rights under the act may not be defeated under the fellow servant rule, assumption of risk, or contributory negligence. Negligence does not arise in a compensation case unless the injury is caused by the employe's "wilful negligence." If the employe's injuries do not prove fatal he gets the statutory compensation and other benefits. But in the event he dies from the effects thereof, "his dependents are given a new, independent remedy, not depending on negligence or tort of the employer."

The employer is "relieved from liability for damages to the employe in an ordinary negligence case wherein he might otherwise be liable for damages to a much greater extent than under the compensation law. His liability in death cases, under the compensation act, in given situations, as where the dependent [widow] dies or marries, may also be substantially less than in actions for wrongful death. The employe is given a simpler and less expensive remedy, and a remedy not based on negligence of the employer." Lewis v. Connolly Contracting Co.196 Minn. 108, 112, 264 N.W. 581.

Our difference of opinion arises by reason of relators' claim (adopted by Mr. Justice Stone) that an analogy exists between negligence and workmen's compensation cases insofar as "all damages are included in the one cause of action against the first wrongdoer. In other words, the cause of action remains a unit, but includes, as a separate and additional element of damages, the harm arising from the malpractice."

1 Mason Minn. St. 1927, § 4326(a), reads:

"The word 'compensation' has been used both in parts 1 and 2 of this act to indicate the money benefits to be paid onaccount of in jury or death. Strictly speaking, the benefitwhich an employe may receive by action at law under part 1 of this act is damages, and this is indicated in section 1. To avoid confusion, the word 'compensation' has been used in both parts of the act, but it should be understood that under part 1the compensation by way of damages is determined by an actionat law." (Italics supplied.)

And § 4326(h) reads:

"The word 'accident' as used in the phrases 'personalinjuries due to accident' or 'injuries or death caused byaccident' in this act, shall, unless a different meaning is clearly indicated by the context, be construed to mean anunexpected or unforeseen event, happening suddenly andviolently, with or without human fault, and producing at thetime injury to the physical structure of the body." (Italics supplied.)

From the first quoted portion of § 4326 it is apparent that the legislature clearly saw and recognized the distinction between the words "compensation" and "damages." Under part 1, "compensation" as there used means "damages" to be "determined by an action at law." Under part 2, "compensation" relates to the "money benefits" to be paid in the usual course thereunder. There the word has its own meaning.

In view of these statutory definitions, how can it be said that a physician's malpractice has anything to do with theoriginal injury ("happening suddenly and violently * * * and producing at the time injury to" the employe's body) insofar as his liability is concerned to the injured workman whom he treats? The employe may be brought great distances and be hospitalized at various times and places far removed from the place of accident. The malpractice may happen months, perhaps years, after the accident causing the original injury. How can we say that the injured man's accidental hurt was here caused "under circumstances also creating a legal liability for damages" by the malpracticing physician? Obviously the physician is not liable for theoriginal injury. While his services are called into play because thereof, his liability arises solely because of his own fault, later occurring, and has for its basis, not contract, but tort.

It is true, as claimed by relators, that the Gile case, including as well the Colorado and California cases, all cited in the opinion, did not involve the question of subrogation. In the Gile case, 177 Minn. 579, 225 N.W. 911, the meat of the decision is stated in the syllabus by the court:

"* * * an action at common law can be maintained by plaintiff against defendant to recover damages for personal injuries sustained, due to defendant's negligence, even though plaintiff is recovering compensation from his employer under the workmen's compensation act."

Liability was there imposed under subd. 2 of § 4291, subd. 1 not being applicable to the facts pleaded.

The Colorado and California cases hold definitely that the same theory applies to the malpracticing physician. If this is the correct view, then obviously McGough's action was not "a unit." If it was, then the malpracticing doctors would have to be exonerated under the rule stated in Smith v. Mann, 184 Minn. 485,239 N.W. 223, and the many other cases therein cited and relied on.

Mindful, as we ever must be, "that the compensation act should receive a broad and liberal construction in the interest of workmen" (Nyberg v. Little Falls Black Granite Co. 192 Minn. 404,405, 256 N.W. 732), we should studiously avoid a narrow or forced construction of the third party statute.

The petition for reargument is denied.