It appears by the complaint herein, appellant, while engaged in his work as a miner in the employ of the Bunker Hill Sullivan Mining Company at Kellogg, Idaho, sustained an injury which arose out of and in the course of his employment; that thereafter he was treated therefor at the Wardner Hospital, the place of business of physicians R.E. Staley and Glenn McCaffery, two of the respondents herein, who previously had entered into a hospital contract with the mining company to furnish medical hospital and surgical attendance to the company's employees under the provisions of Section 43-1108, I. C. A.; that under the plan for the hospital services and medical treatment to be furnished by said physicians, there was diverted from the wages of appellant the sum of One Dollar per month, which was paid to the contract physicians; that the treatment of appellant for the injury thus sustained, was negligently and carelessly rendered by respondents, in the particulars set out in the complaint, necessitating the amputation of appellant's right leg at the knee joint. The acts of negligence are pleaded in detail and appellant also charges that by reason thereof he suffered excruciating pain between the 25th day of February 1941, to about the 30th day of December, 1941, during which period he was under the care of respondents. The complaint charges gross negligence, both in diagnosis and treatment, claims damages in the sum of $30,000.00 for which sum judgment is sought against all of the defendants, respondents here.
Respondents interposed a demurrer to the complaint on the grounds: (1) — That it does not state facts sufficient to constitute a cause of action; (2) — That the court has no jurisdiction of the subject of the action; and (3) — That it is ambiguous, uncertain and unintelligible in certain particulars therein pointed out.
The trial court by order duly made and entered, sustained the demurrer without leave to amend, and thereafter entered judgment in favor of respondents, against appellant, ordering and decreeing that appellant take nothing by this action, and that respondents have and recover their cost.
The appeal is from the judgment so entered. *Page 649
Appellant has alleged a number of assignments of error but they all revolve around the principal question of jurisdiction of the trial court to hear and determine the cause of action as alleged. In other words, the principal question for our consideration here, is whether or not the district court has jurisdiction to try this suit, or is the employee's remedy for the alleged damage to his body limited to recovery of compensation as provided by our Workmen's Compensation Law.
Appellant contends that his right to compensation under the Workmen's Compensation Act does not bar such an action for malpractice.
The precise question has apparently never been decided by this Court.
Various courts have taken opposite views on the matter and there is some conflict in the decisions, which to some extent may be explained by the difference in the provisions of the compensation acts. (82 A.L.R., p. 934.)
As stated by Mr. Justice Givens in Arneson v. Robinson,59 Idaho 223, 82 P.2d 249, "Decisions of courts on somewhat closely analogous questions under statutes not sufficiently similar to ours or not raising the precise question, are not particularly helpful nor controlling. It is primarily a question of legislative intent as expressed in the statute directly or by necessary implication."
The pertinent sections of our statute are Sections43-9021, 43-10032, 43-10043,43-10054, 43-11075, 43-11086,43-11097, Section 43-1413, I. C. A., as amended by Section 3, Chap. 175, 1937 Session Laws8. *Page 650
Under the provisions of Section 43-1003, I. C. A., the rights and remedies granted by the Act to an employee on account of a personal injury for which he is entitled to compensation under the act excludes all other rights and remedies of the employee at common law or otherwise, on account of such injury.
This abridgement of the workman's remedies, however, is not applicable when the injury for which compensation is payable under the act, has been sustained under circumstances creating in some person other than the employer, a legal liability to pay damages in respect thereto, in which event it is provided by the act that the injured employee may at his option, either claim compensation under the act, or obtain damages or proceed at law against such other person to recover damages. (Section43-1004, I. C. A.)
Thus, it is clear that the common law right of action of an employee against a third person to recover damages for personal injuries sustained by actionable negligence of such third person was not abolished by the act, and this Court, speaking through our learned Mr. Chief Justice Holden, in Lebak v.Nelson, 62 Idaho 96, 107 P.2d 1054, so held, in the following words: "It must be constantly kept in mind the common law action of an employee against a third person to recover damages for personal injuries sustained by reason of actionable negligence of such third party was not *Page 651 abolished; therefore, such cause of action would still belong to the injured workman, if he survives his injury, and to his widow (if any) and dependents (if any) if he does not. Under the statute, when an employee is injured under circumstances which make his injury compensable and at the same time creates 'in some other person than the employer, a legal liability to pay damages,' and he claims compensation, then his employer, if he has either paid the compensation or become liable to pay it, is subrogated to the right of the injured employee to recover what he (the employer) has paid or become liable to pay."
However, it is respondent's contention that the original injury here to appellant and the subsequent alleged carelessness and negligent treatment of the physicians are not separable; that without the accident there would have been no occasion for the treatment and that for the treatment and damages to appellant caused thereby, appellant's only recourse is under the Workmen's Compensation Act for the compensation fixed by the act.
With this contention we are not in accord. From the complaint it appears that appellant's physical condition, the loss of his leg and earning power, and permanent disability is the result of the negligence and malpractice of the doctors; it is true the original injury necessitated hospital and *Page 652 medical treatment, but it is not the original injury for which recovery is sought here. The injuries for which damages are claimed in this suit are independent to and additional to those originally sustained (White v. Matthews, 224 N.Y. S. 559) and the right to maintain this action cannot be denied on the strained theory that had there been no injury there would have been no malpractice and that consequently the malpractice is the proximate result of the original injury; such a conclusion would permit the wrong-doer to go practically unscathed for grievous damage to another, and would likewise sentence the workman to a lifetime of drear and hopeless existence through inability to work and live a normal life, because of a maimed body, with his only compensation limited to a sum totally inadeuate to cover his sustained losses. The condition complained of is not the proximate result of the accident, but it is the proximate result of the negligent act of the physicians who treated the injury.
As illustrative of the distinction between the disassociation of the injury and the negligent treatment, we quote from the case of Denes v. Hollingshead Co., (N.J.) 145 Atl., p. 321, wherein the employee sued his employer for disability from negligent treatment of the injury. The court said: "The complaint discloses that plaintiff was employed by defendant; that in the course of his employment, he suffered *Page 653 a slight injury to his leg; that defendant undertook to render treatment to his leg; that defendant so improperly, unskillfully and negligently treated the leg by the use of improper, alkiline, acrid and irritating lotions, that plaintiff's leg became ulcerated and permanently disabled. Defendant insists that the only remedy is under the Workmen's Compensation Act (P. L. 1911, p. 134 as amended) and alleged that the injuries complained of arose out of and in the course of his employment, and cites Newcomb v. Albertson,85 N.J. Law 435, 89 A. 928, and Lundy v. Brown Co., 93 N.J. Law 469,108 A. 252.
"The complaint alleges a set of facts that indicates that the condition complained of is not the result of the accident, but is the result of entirely different causes, namely, negligence in treatment. I am unable to distinguish between a negligent act of the employer, not related to the accident which rendered the treatment necessary, and the negligent act of a surgeon in the treatment of an injury. One is no more the result of the accident than is the other. The condition complained of is not the proximate result of the accident, but is alleged to be the proximate result of an act not related to the happening of the accident.
"I have been unable to find any case precisely in point, nor has the diligence of counsel supplied me with any authority. *Page 654 The case of Smith v. International High Speed Steel Co.,98 N.J. Law 574, 120 A. 188, is authority that only such conditions as result from an accident are to be recovered for under the Compensation Act. To the same effect is LiondaleBleach Etc. Works v. Riker, 85 N.J. Law 426, 89 A. 929. In these cases it is held that disease or conditions which result from and in consequence of accidental injuries are part of such injuries. But these cases are distinguishable from the instant one, where the allegation is that the condition or disease complained of would not and did not result from the injury received, but resulted wholly from an intervening negligent act."
Respondents are third persons as contemplated by Section43-1004, I. C. A.; to hold otherwise would be contrary to the plain wording of that section, and to this Court's fixed policy of liberal construction of the act in favor of the employee (Moon v. Ervin, et al, 64 Idaho 464, 133 P.2d 933; Stover v.Washington County, 63 Idaho 145, 118 P.2d 63; Olson v. UnionPacific RR. Co., 62 Idaho 423, 112 P.2d 1005) and deprive appellant of property without due process of law, in violation of Art. 1, Sec. 13 of our Idaho Constitution.
Under a statute almost identical to our Section 43-1004, I. C. A., (Revised Statutes of Utah, 1933, 42-1-58) the Utah *Page 655 Court in the case of Baker v. Wycoff, 79 P.2d 77, held that a physician is a third person within the meaning of that term as used in the statute. In that case, plaintiff Baker began his action against the doctor for damages, alleging negligence in diagnosing and in treatment of the injury. The commission, administrator of the insurance fund, the insurance carrier, intervened, and alleged the cause of action of the workman had been, by statute, assigned to it, and that it was subrogated to the rights of the workman by reason of having paid compensation including hospital and medical expenses, covering both the original injury and aggravation of the original injury by negligence of the doctor. The intervenor, the industrial commission, recovered judgment against the physician in a sum larger than necessary to make it whole for money paid and to be paid on its liability to the workman. The court said: "The questions raised by the 30 assignments of error may be for convenience grouped under four heads: (1) — Has the insurer, the intervener, the legal right to maintain this action? (2) — Do the facts found by the court constitute actionable negligence on the part of the physician? * * * The answer to the first question must be found in an interpretation of Section 42-1-58, R. S., 1933, which reads as follows: 'When any injury for which compensation is payable under this title shall have been caused by the wrongful act of a third person, the injured employee, or in case of death, his dependents, may at their option claim compensation under this title or have their action for damages against such third person; and if compensation is claimed and awarded, the employer or insurance carrier having paid the compensation shall be subrogated to the rights of such employee or his dependents to recover against such third person; provided if such recovery shall be in excess of the amount of the compensation awarded and paid, then such excess, less the reasonable expenses of the action shall be paid to the employee or his dependents.'
"(1). The first inquiry is whether the negligence of the physician is an injury for which compensation is payable under the statute. The answer must be in the affirmative, as it seems well settled that, where the chain of causation between an accidental injury and the ultimate disability remains unbroken, an injured employee is entitled to statutory compensation for the ultimate injury resulting from the accidental injury, though the injury has been aggravated *Page 656 by intervening malpractice. The treatment of the original injury by a physician is within the chain of causation. (citing cases.)
"(2). Baker was entitled to claim, and actually received from the insurance carrier, full compensation, including hospital and medical treatment, for his injury caused by the accident in the mine as aggravated by the claimed negligence of the physician. Baker accepted compensation both before and after he became aware of the negligence of the physician. He must, therefore, be held to have elected to take compensation under the act. Any right of action he had, passed, under the statute, to the insurance carrier, who was by law subrogated to the rights of the workman. (Citing cases.)
"The next question is whether the physician is such a third person as is contemplated by the statute, as it is only the wrongful act of a third person which gives rise to a cause of action in favor of the insurance carrier. Appellant contends that the statute was intended to cover only cases where the original injury was caused through negligence of a third person, and therefore, a physician who treats the original injury is not such a third person. Unless the appellant in this case (or more accurately, the deceased, for whom appellant is the administrator) is a third person under Section 42-1-68, R. S. 1933, the insurance carrier who has paid compensation for aggravated injuries caused by the negligence of the deceased doctor will not be subrogated to any rights of the injured party so as to be able to sue for the aggravation of his injuries caused by the negligence of the doctor.
"There have been a number of cases holding that a doctor is liable to an employer, or the insurance carrier, as the case may be, for aggravated injuries to an employee who has already been injured, where the aggravated injuries were due to the doctor's malpractice, if the employer has paid compensation to the employee for such injuries and thereby become subrogated to the rights of the employee against the doctor for his negligent practice. (Jordan v. Orcutt, 279 Mass. 413, 181 N.E. 661, (where an insurance carrier was allowed to recover for pain and suffering of an employee resulting from the physician's negligent treatment, the insurer having paid compensation to the employee;) (Parchefsky v. Kroll Bros., 267 N.Y. 410,196 N.E. 308, 98 A.L.R. 1387.) There, the court said *Page 657 that if the employee elects to take compensation where the compensable injury is aggravated by negligent treatment, the employer becomes subrogated to the employee's right of action against the physician; otherwise, if the employee elects to sue the physician, the employer is liable for compensation only for the injury apart from the result of the malpractice. Other cases holding the employee's right of action passes to the insurance carrier are Polucha v. Landes, 60 N.D. 159,233 N.W. 264; Overbeck v. Nex, 261 Mich. 156, 246 N.W. 196 and Vayda v.DeWitt, 261 Mich. 165, 246 N.W. 199.
"But in neither of these cases was the problem of who is a 'third person' discussed by the court. * * * (Citing cases.)
"(3). The question then remains whether this court should construe the term 'third person' as used in our statute to mean that any person other than the employee and immediate employer is a 'third person' or whether such person must have been the cause of the original injury before he can be designated as such. The above cases are not directly in point. But irrespective of that, the physician must be held a 'third person' under the decision of this court in Gunnison Sugar Co.v. Industrial Comm., 73 Utah 535, 275 P. 777, and the other cases heretofore cited, to the effect that the compensation liability referred to in the statute is not limited to compensation for the initial injury but includes also expense and disability caused by acts of other persons if within the chain of causation. In the Gunnison Sugar case the extra expense which the insurer paid arose out of treatment by the physician.
"(4). At common law the employee had a right of action against the doctor for malpractice where negligence of the physician aggravated the original injury. The person causing the original injury and the physician who aggravated its condition were not regarded as joint tort-feasors. The position, however, of two independent joint tort-feasors is in many respects analogous. Action might be brought and recovery had against the original party and another action against the physician for the damage caused by his negligence. Our statute recognizes and preserves the common law right of action in the employee against a third person causing an injury, but, where such is within the chain of causation and aggravates or adds to the original injury, it becomes part of the injury for which compensation *Page 658 may be paid. The option is left with the employee as to whetherhe will claim compensation for his injury or maintain hiscommon law right of action against the physician. On broad grounds of furthering substantial justice conducive to better social relationships and to guard against injustice which might result from a double recovery by the employee, the statute provides that the employer or the insurance carrier who pays compensation is subrogated to the rights of the employee where the employee has exercised his option and taken compensation. The statute contemplates that a wrongdoer shall not go unwhipped of justice.
"Appellant cites a number of cases to the effect that the employee cannot recover from a physician for malpractice, but in all of them the employee has already received compensation. Such decisions really amount to this, that double payment will not be allowed for the same injury. These cases are not decisive of the right of the insurer to maintain this action, although they hold that the award of compensation may properly cover both the original injury and the ultimate condition, including aggravation caused by negligence of the physician; and where the employee accepts compensation, he may not sue the physician and recover against him also. (Citing cases.)
"We conclude, therefore, that the physician is a third person under the statute; that the insurance carrier, having paid compensation to the employee for the injury suffered in the mine accident, together with the aggravation caused by negligent treatment by the physician, became subrogated to the rights of the employee as to any cause of action the employee had against the third party physician." (Italics supplied.)
Respondents contend that the relation of physician and patient did not exist between the parties here because of the contract between the employer and respondents McCaffery and Staley, by the terms and provisions of which said respondents were to furnish medical treatment and attention to such employees as received injuries arising out of and in the course of their employment, and on this ground seek to distinguish this case from Smith v. Golden State Hospital, (Cal.)296 P. 127; Smith v. Coleman, (Cal.) 116 P.2d 133, cited by appellant. However, this same contention was made in the Minnesota case of Viita v. Fleming, 132 Minn. 128,155 N.W. 1077, L.R.A. 1916D 644, Ann. Cas. 1917E, 678, which case was discussed by the California *Page 659 Court in the case of Smith v. Golden State Hospital,296 P. 127, and wherein the California Court remarked upon the similarity of the two cases and with reference to the Minnesota case, said: "An injured employee was sent to a hospital by his employer for treatment by physicians with whom the employer had an arrangement for treatment of employees in such cases. It was alleged that unskillful or negligent treatment and appliances administered resulted in permanent injury, which otherwise would not have occurred. The employer submitted to the court for approval a proposed settlement reciting that 'the employer shall be and hereby is released from all claims on account of said injury, under said act or otherwise.' In an action against the physicians for damages it was contended by them that the cause of action had been included in and was barred by the settlement of their principles with the employee. The opinion proceeds: 'The contention that the relation of physician and patient did not exist between defendant and plaintiff is based upon the facts hereinbefore stated as to the arrangement under which plaintiff was admitted to the hospital and treated by defendants. We see nothing in these facts to justify a decision that defendants did not owe plaintiff the duty to use ordinary care and skill in treating his injury. It is true that Johnson-Wentworth Company, under the terms of the compensation act, was required to provide medical and surgical treatment to the injured employee during the first 90 days of his disability and to an amount not exceeding $100.00. But we are unable to see how this changes the relationship between the injured employee and the physician or surgeon employed, or affects the duty of the latter to the former. It may be true in a sense that Drs. Fleming and Dolan were the agents of the employer for the purpose of minimizing the results of the injury and shortening the period of disability. Even if it be conceded that the employer might be liable for the negligence of the physicians on this theory of agency, this is no reason why the physicians are not liable directly to the patient. It is not material that plaintiff did not know the physicians, engage their services himself, or pay for the services in the ordinary way. Plaintiff, in fact, paid for medical and surgical treatment, and it surely can make no difference that this was by monthly deductions from his wages. Indeed, it is the law that the fact that a physician or surgeon renders services gratuitously does not *Page 660 absolve him from the duty to use reasonable care, skill and diligence. * * *' "
Respondents rely upon Ross v. Ericson Construction Co., (Wash.) 155 P. 153, Alexander v. von Wedel, (Okla.)37 P.2d 252; Roman v. Smith, (Ida.) 42 Fed. (2d) 931; and Flock v. J.C. Palumbo Fruit Co., 63 Idaho 220, 118 P.2d 707.
The decision in the case of Ross v. Ericson Construction Co., (Wash.) 155 P. 153, might, at first impression, seem to support the position taken by respondents in this case. However, a careful comparison of the Washington law with our own law, will disclose some decided differences in the wording of the acts, and by reason of this fact the decision cannot be controlling as requiring a similar construction of our law to be applied to the facts in the instant case. There is also a difference in the facts between the two cases.
In the Ross case, the action was against the employer and the physician to recover damages for malpractice of the physician employed to do the surgical and hospital work for the employer, and was instituted after the employee had accepted a final award under the Workmen's Compensation Act. It was contended that additional recovery could not be had against either of the defendants for the reason that the workman had been thus compensated for all injuries resulting from the primary injury or proximately attributable thereto.
The Washington Statute classifies certain occupations as extra-hazardous, and specifically provides that no action may be brought against the employer or any workman under the act as a third person if at the time of the accident such employer or such workman was in the course of any extra-hazardous employment under the act. (Sec. 7675, Remington Rev. Stat. of Wash., Ann.) We do not have a similar provision.
Another feature of the Washington act is the provision to effect, "The compensation allowed may be re-adjusted if aggravation * * * of the injury takes place or be disclosed after the rate of compensation has been established." (Sec. 7679, Remington Rev. Stat. of Wash., Ann.) While we have a provision under our law for the modification of an award upon a change of conditions, (Sec. 43-1407, I. C. A.) our statute does not provide, as does the Washington law, for re-adjustment of compensation if the injury be aggravated. *Page 661 That these features of the Washington law were considered in the decision of the Ross case, is apparent.
In the instant case, it does not appear that any award had been made or compensation whatever received by appellant under the Workmen's Compensation law, but regardless of that fact, and as illustrative of the distinction between the Washington law and our own law as to the right of the workman to seek recovery against a third party who has caused the injury, this Court, speaking through our learned Mr. Justice Ailshie, in the opinion on petition for re-hearing in the case of Lebak v.Nelson, 62 Idaho 96, 107 P.2d 1054, after quoting Sec.43-1004, I. C. A., and in construing same, said: "It must be remembered that the Workman's Compensation law is a remedial and special law, providing compensation for injured employees without reference to any question of negligence either on the part of the employer or employee; consequently, an award made to a workman under this act bears no relation whatever to any negligence on the part of the employer, a stranger, or anyoneelse. When an award is made under this act in favor of an employee and liability attaches in favor of the employer or insurance carrier or both, the statute at once confers upon such employer or insurance carrier or both a right of action against a third party who may have caused or wrongfullycontributed to the injury of the employee. * * * The statute does not attempt to take away from the workman his right of action against a third party for any tort that may be committed against him by such person or persons. An action prosecuted against a third party or tort feasor must necessarily rest upon the law of negligence and be tried to a jury the same as any other action for negligence." (Italics mine.)
It is therefore clear that the Washington case relied upon by respondents is not controlling on the facts in this case, and that anyone who may have caused or wrongfully contributed to the original injury of the employee is answerable for such negligence in a court of law at the option of the employee.
The decision of the Oklahoma Court in the case ofAlexander v. von Wedel, 37 P.2d 252, was based upon its former decision of Markley v. White, 32 P.2d 716. The Oklahoma Statute, 1941, Title 85, Sec. 44, reveals that under the law the workman is limited to compensation under *Page 662 the act, unless the injury be by the negligence or wrong of another not in the same employ, in which event, before filing any suit or claim under the act, he must elect to take his compensation under the act or to pursue his remedy against such other, and in Alexander v. von Wedel, and in Markley v. White, it appears that prior to the suits, an order had been made by the Commission awarding plaintiffs compensation, and the court held that the awards included compensation for the original injury and compensation for the ultimate results of such injury, including the carelessness and negligence of employer's selected physicians and surgeons.
In view of the wording of the Oklahoma statute, and the facts in those cases from that court above referred to, we cannot view those decisions as decisive in the instant case.
The case of Flock v. Palumbo Fruit Co., 63 Idaho 220,118 P.2d 707, which was a proceeding by the employee against his employer and the contracted physician under the act, does not sustain respondents' contention that the Board has exclusive jurisdiction of the matter involved here. There, the employee did not receive the required care from the contract physician, and this Court held that in such case he might then seek it elsewhere, the Court holding the contract physician liable for the expense of the outside physician, and relieving the employer and his insurance carrier for the expense thereof, and in this connection, the Court said: "After hospital contract has been duly entered into and approved by the Board, the employer and his surety are relieved from further liability for medical care and attention to the employee."
It is clear that this Court, in using the words above quoted, was referring to the liability of the employer for medical attendance under the provisions of Sec. 43-1107, I. C. A., for, as stated by the Court therein, "Sec. 43-1108 permits the employer and employee to waive the provisions of the above section (43-1107) and enter into medical contracts or agreements providing for hospital benefits, and accommodations to the employee."
Involved in the Flock case was the question of liability to the employee, as between the employer and the contract physician, for payment of medical attendance which the physician had contracted to furnish the employee, and which he failed to do, after agreeing otherwise, and securing *Page 663 payment therefor. The jurisdiction of the Board on that matter was not questioned, and rightly so, since it was a question involving construction of a hospital contract, and we have held that such questions are within the jurisdiction of the Industrial Accident Board (Arneson v. Robinson, 59 Idaho 223,82 P.2d 249.)
The question here does not involve the construction of a hospital contract under our act, but rather the right of a workman, to exercise a choice of two remedies, clearly given him by the act.
Moreover, in the Flock case, the Court laid down the measure of responsibility of the contract physician to the patient, in the following words: "The measure of responsibility for care, treatment, hospitalization, etc., resting upon appellant contract physician under this contract, is at least equal to that resting upon a physician and surgeon in the exercise generally of his profession. That standard has been fixed by this Court under both Secs. 43-1107 and 43-1108, as the exercise of the care and skill ordinarily exercised by competent physicians and surgeons in the same or like locality, in the light of present day learning and scientific knowledge of and professional advancement in the subject."
We are unwilling to follow the decision in the case ofRoman v. Smith, 42 Fed. (2d) 931, which, of course, was decided prior to any decision by this Court on the precise point involved here.
Respondents also rely upon the case of Arneson v. Robinson,59 Idaho 223, 82 P.2d 249. Respondent Arneson received an injury arising out of and in the course of his employment with Robinson. He was refused treatment at the hospital by the contract physician on the ground that he had suffered no compensable injury nor contracted no disease while in appellant's employ. He secured medical and surgical treatment elsewhere. The Industrial Accident Board awarded him compensation therefor, and it was urged by the appellants that the Board had no jurisdiction of the cause and that the workman must seek his relief in an independent action, as for breach of contract. The court held that it was the apparent intention of the legislature that the employee should have means of redress if the treatment was wrongfully refused, and that a liability rested upon the employer for the failure to provide the treatment *Page 664 and that the issue was properly presented to the Board under the Workmen's Compensation Law, as the legislature had given the Board jurisdiction of questions under such agreements. In that case, the employee was seeking to recover from the employer, and his surety, expenses for hospitalization and medical treatment to which he was clearly entitled, and for which they were clearly liable under the Workmen's Compensation Law. But the contention here that the Board, under the facts in this case, has sole jurisdiction, is, as has heretofore been stated, contrary to the plain wording of Sec. 43-1004, I. C. A., wherein it is specifically provided that an injured employee may, as therein provided, and at his option, either claim compensation under the act, or obtain damages from or proceed against such other person to recover damages. Arnesonv. Robinson is not authority for respondents' contention.
This section (43-1004) contemplates the existence at the same time, of two remedies either of which the employee may pursue. He may invoke the statutory remedy against his employer, or the common law remedy against the third person, who, by his negligence caused the injury.
Remarks of the California Court in the case of Smith v.Coleman, et al, 116 P.2d 134, are particularly pertinent on the point involved in this case. There, the court said: "But, where, as in the instant case, recovery for a new or aggravated injury which resulted from the negligence of the physician who treated plaintiff's industrial injury, is sought against the physician only, and neither the employer nor the latter's insurance carrier is a party, plaintiff may recover in an ordinary civil action for malpractice."
In Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054, we held: "The Workmen's Compensation Law was not intended to fully compensate a workman for injury sustained, but to provide quick, sure, and certain relief for injured workmen and their families and dependents, regardless of questions of fault." This is a condition universally recognized as existing under the various compensation acts, and such acts should therefore not be construed and are not intended to shield a third party for wrongs committed by him on the workman, under a strained theory of construing the third party's injuries as a proximate result of the original injury. In the case of Smith v. GoldenState Hospital, (Cal.) 296 P. 127, the court said: "Without conceivable exception, it must occur that by the construction universally placed upon *Page 665 humane workmen's compensation legislation, employees are so restricted with respect to relief for proximate injuries that their right to other recourse in the event of subsequent injury by independent third parties over whose discretion and actions neither employer or employee has control, should be, and is, unfettered. The lawmaking power has taken from him all of his common law rights, and all previous statutory rights, and has given him new rights. He does not, and cannot have a hand in writing the insurance. * * * Before the enactment of these statutes, the injured employee could sue for any sum designated in his complaint. Now he can apply for the statutory allowance which is secured by the insurance. * * * That independent professions by the fact of business contact with the employer should be absolved of responsibility for mistake, avoidable or unjustified neglect resulting in secondary affliction, seems obnoxious to the purpose and spirit of such a statute. To so hold might induce industry to encourage quackery, and place a premium upon negligence, inefficiency and wanton disregard of the professional obligations of medical departments of industry, toward the artisan. Such is the view entertained by courts of last resort in other jurisdictions where the subject has required specific attention."
Under the common law, every physician and surgeon is answerable for want of the requisite knowledge or skill or the omission to use reasonable care or diligence or the failure to exercise his best judgment. (41 Am. Jur., p. 198, sec. 79.) We cannot hold that the legislature, by the passage of the compensation act, intended it to be so construed that the physician should be absolved from his responsibility to his employee patient, in compensation cases, on the theory that the patient's only remedy is under the act. Such construction would be a denial of a common law right, clearly not intended by the act.
In the case of Sprouse v. McGee, 46 Idaho 622, 269 P. 993, this Court, in construing certain of our statutory provisions, said: "We must construe these sections in view of the principle that changes in the common law by the adoption of a statute are not to be presumed, unless an intent appears to accomplish that purpose."
That the physicians were negligent in treating the appellant in this case, is an assumption, of course, based upon the condition of the pleadings, since the demurrer admits *Page 666 the truth of the allegations contained in appellant's complaint. (Ashley v. Richard, 32 Idaho 551, 105 P. 1076;Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060; IdahoIrrigation Etc. Co. v. Lincoln County, 28 Idaho 98, 152 P. 1058;Fond v. McCreery, 55 Idaho 144, 39 P.2d 766; Henderson v.Twin Falls County, 56 Idaho 124, 50 P.2d 597; 101 A.L.R. 1151; Boise Payette Lbr. Co. v. Idaho G. D. Corp., 56 Idaho 660,58 P.2d 786.)
The judgment of the trial court is reversed, and the cause remanded, with directions to the trial court to overrule the demurrer and permit defendants to answer.
Costs to appellant.
I am authorized to state that Mr. Justice Givens concurs in this opinion.
1 43-902. Declaration of police power. The common law system governing the remedy of workmen against employers for injuries received in industrial and public work is inconsistent with modern industrial conditions. The administration of the common law system in such cases has produced the result that little of the cost to the employer has reached the injured workman, and that little at large expense to the public. The remedy of the workman has been uncertain, slow and inadequate. Injuries in such employments formerly occasional have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wage-workers. The State of Idaho, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for injured workmen and their families and dependents is hereby provided, regardless of question of fault, and to the exclusion of every other remedy, proceeding or compensation, except as is otherwise provided in this act, and to that end all civil actions and civil causes of action for such personal injuries, and all jurisdiction of the courts of the state over such causes are hereby abolished except as is in this act provided.
2 43-1003. Right to compensation exclusive. The rights and remedies herein granted to an employee on account of a personal injury for which he is entitled to compensation under this act shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury. Employers who hire workmen within this state to work outside of the state, may agree with such workmen that the remedies under this act shall be exclusive as regards injuries received outside this state by accident arising out of and in the course of such employment; and all contracts of hiring in this state shall be presumed to include such an agreement.
3 43-1004. Liability of third persons. When an injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this act, or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this act any employer having paid the compensation or having become liable therefor, shall be subrogated to the right of the injured employee to recover against that person; provided, if the employer shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this act, then any such excess shall be paid to the injured employee less the employer's expenses and costs of action.
4 43-1005. Contracting out forbidden. No contract, rule, regulation or device whatever shall operate to relieve the employer in whole or in part from any liability created by this act, other than as provided in Sections 43-1006 and 43-1108.
5 43-1107. Medical attendance. The employer shall provide for an injured employee such reasonable medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches and apparatus, as may be required or be requested by the employee immediately after an injury, and for a reasonable time thereafter. If the employer fails to provide the same, the injured employee may do so at the expense of the employer. All fees and other charges for such treatment and services and compensation therefor shall be subject to regulation by the board. The pecuniary liability of the employer for the treatment and other service herein required, shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person. In determining what fees and charges are reasonable, the board shall consider the increased security of payment afforded by this act.
6 43-1108. Hospital contracts. Nothing in this act shall be construed as preventing employers and workmen from waiving the provisions of Section 43-1107 and entering into mutual contracts or agreements providing for hospital benefits and accommodations to be furnished to the employee. Such hospital contracts or agreements must provide for medical, hospital and surgical attendance for such employee for sickness contracted during the employment (except veneral disease and sickness as a result of intoxication) as well as for injuries received arising out of and in the course of the employment. No assessment of employee for such hospital contracts or benefits shall exceed $1 per month for each employee, except in cases where it shall appear to the satisfaction of the board, after a hearing had for that purpose, that the actual cost of such service exceeds the said sum of $1 per month, and any such finding of the board may be modified at any time when justified by a change of conditions, or otherwise, either upon the board's own motion or the application of any party in interest. No profit directly or indirectly shall be made by any employer as a result of such hospital contract or assessment. It is the purpose and intent of this act to provide that each and every hospital maintained wholly or in part by payments from workmen, which furnishes treatment and services to employees for sickness and injury, as provided in this act, shall be under the supervision of the board as to services and treatment rendered such employees, and shall, from time to time make reports of such services, attendances, treatments, receipts and disbursements as the board may require.
7 43-1109. Hospital contracts. Bond of contractor. Before approving any hospital contract or agreement, the individual corporation or association agreeing to furnish to the employees of any employer of the State of Idaho, medical, hospital and surgical attendance provided for in section 43-1108, the board may, in its discretion, require such individual, corporation, or association to file with the board a surety bond in the penal sum of $5000 conditioned that such individual, corporation or association will faithfully furnish to such employees the medical, hospital and surgical attendance agreed to be furnished in such contract and agreement and required to be furnished by Section 43-1108.
8 43-1413 (as amended). General Powers of Board. All questions arising under this Act, if not settled by agreement or stipulation of the parties interested therein, with the approval of the board, shall, except as otherwise herein provided, be determined by the Board. The Board shall have power to adopt rules of procedure. The decisions of the board shall be enforcible by the district court under the provisions of Section 43-1410. There shall be a right of appeal from decisions of the board to the * * * supreme court as provided in Section 43-1408, but in no case shall such an appeal, either under this Section or under Section 43-1408, operate as a supersedeas or stay unless the board or the * * * supreme court shall so order.