Deauville v. Hall

Plaintiff in propria persona filed a negligence action against his employer, Walt Disney Productions, and one Don Hall for aggravating a disability arising out of an injury compensable under the Workmen’s Compensation Act. Principally on the ground that the superior court has no jurisdiction over the cause the lower court sustained a demurrer to the third amended complaint. Plaintiff appeals from the judgment entered against him on the order; Walt Disney Productions is the sole respondent.

A demurrer on the ground the complaint failed to state facts sufficient to constitute a cause of action was sustained. Plaintiff amended in the form of Paragraph VIII: ‘ ‘ The right diagnosis of injury sustained while an employee for Disney Studio July 22, 1958, when given attention by first aid man, warranted sending plaintiff to hospital and given [sic] proper medical attention immediately. The symptoms consisted of extreme swelling and painful walking and falling on a dislocated knee joint to the hard ground was involved to extend proper medical treatment again warranted hospitalization.”

Demurrer sustained, plaintiff amended a second time alleging : “The negligence involved in not giving proper medical attention and hospitalization for injury to plaintiff’s knee sustained while working for Disney Studio July 22, 1958, at Janss Ranch resulted in permanent disability to the left leg” (Par. IX).

A third demurrer sustained, plaintiff again amended by alleging in Paragraph X that defendants, though insured by the State Compensation Insurance Fund, are not exempt from giving proper medical attention to injuries sustained by employees while on the job; that “a crushed and shattered knee joint caused by falling after a dislocation of knee while running caused by left heel getting caught in hole or crack in ground, along with injury to right knee and injury to lumbar-sacral [sic] disc, warranted more than knee bandage”; that his injuries still prevail and “gross negligence due to lack of proper medical attention on defendant’s part with regard to plaintiff warrants a cause of action in the Superior Court.” A demurrer, general and special for ambiguity, uncertainty and unintelligibility, was interposed and sustained without leave to amend.

Appellant’s principal argument is that an employee’s rem

The pleading and its successive amendments, brief and factually incomplete, we analyze to constitute primarily a suit against plaintiff’s insured employer for the negligence of its employee Hall in sending plaintiff, who injured his knee on the job, for treatment to an unqualified doctor who negligently diagnosed the injury and failed to give him the proper medical treatment and hospitalization; however, appellant now relies mainly upon his asserted right to sue his employer where it “undertakes like a physician to examine, diagnose, treat and care for an industrial injury and does so negligently,” predicating his claim on Paragraph VIII of the second amended complaint alleging that the “right diagnosis” of his injury “when given attention by first aid man” warranted immediate hospitalization and proper medical care. Thus, plaintiff seeks to hold his insured employer in an independent suit on two theories—for its negligence in sending him to an unqualified doctor who, by his negligent diagnosis and treatment aggravated the injury; and for its negligence, through a first-aid man, for failing to rightly diagnose plaintiff’s injury in the process of securing medical aid for him. Although appellant extensively argues the latter in support of his cause and appears to concede that his first position is not warranted, because of the nature of his pleading we propose to discuss both theories of the case, neither of which we find to be sound.

It is not disputed that plaintiff’s knee was injured in the course of his employment with Walt Disney Productions; on its face the pleading reveals that the employer was insured by the State Compensation Insurance Fund; and it is conceded that the commission has exclusive jurisdiction over the original industrial injury (Lab. Code, § 3601 [1958]) ; Scott v. Industrial Acc. Com., 46 Cal.2d 76 [ 293 P.2d 18 ] ; Duprey v. Shane, 39 Cal.2d 781 [ 249 P.2d 8 ] ; Popejoy v. Hannon, 37 Cal.2d 159 [ 231 P.2d 484 ] ; Baugh v. Rogers, 24 Cal.2d 200 [ 148 P.2d 633 , 152 A.L.R. 1043 ] ; Moise v. Owens, 96 Cal.App.2d 617 [ 216 P.2d 22 ].)

The Workmen’s Compensation Act provides an exclusive and complete system of compensation for injuries to employees arising out of and in the course of their employ

For the purpose of further discussion and review of decisional authorities, we shall treat the term “employer” and “carrier” interchangeably. (Fitzpatrick v. Fidelity & Casualty Co., 7 Cal.2d 230 [ 60 P.2d 276 ] ; Noe v. Travelers Ins. Co., 172 Cal.App.2d 731 [ 342 P.2d 976 ].)

Inasmuch as insurance coverage of the employer and plaintiff’s industrial injury, appear on the face of the pleading, it is clear that the superior court is without jurisdiction in the matter (Scott v. Industrial Acc. Com., 46 Cal.2d 76 [ 293 P.2d 18 ] ; Duprey v. Shane, 39 Cal.2d 781 [ 249 P.2d 8 ] ; Popejoy v. Hannon, 37 Cal.2d 159 [ 231 P.2d 484 ] ; Baugh v. Rogers, 24 Cal.2d 200 [ 148 P.2d 633 , 152 A.L.R. 1043 ]), unless therein plaintiff has alleged facts constituting an exception to the rule that an injured employee must pursue his remedy before the Industrial Accident Commission. (Butler v. Wyman, 128 Cal.App. 736 [ 18 P.2d 354 ].) We find no such exception in the pleading or under the facts, not alleged, but presented by appellant in his brief.

It is the duty of an employer under the act to provide an injured employee with that medical, surgical and hospital treatment which is reasonably required to cure or relieve from the effects of the injury (Lab. Code, § 4600) and to take the initiative in furnishing the same. (Larson v. Holbrook, 2 I.A.C. 130.) But there is nothing in the act or the authorities to warrant an action in a court of law against an employer for the latter’s negligence in providing

So, too, if suit in a court of law could be maintained against an insured employer for its negligence and providing medical treatment, extensive litigation would undoubtedly result from a variety of sources-—the employee’s dissatisfaction with the doctor chosen, with the diagnosis and treatment given, or with the care or skill the doctor used; or the em

The same principle rejects an independent action against an employer for a doctor’s negligence. “Where recovery is sought by an employee against Ms employer or the employer’s insurance carrier for a new or aggravated injury resulting from the negligence of a physician in treating an industrial injury, the Industrial Accident Commission has exclusive jurisdiction to determine the claim. (Fitzpatrick v. Fidelity & Casualty Co. of N. Y., 7 Cal.2d 230 [ 60 P.2d 276 ] ; Nelson v. Associated Indem. Corp., 19 Cal.App.2d 564 [ 66 P.2d 184 ].)” (Smith v. Coleman, 46 Cal.App.2d 507 , 513 [ 116 P.2d 133 ].) And if valid, an additional award of compensation therefor may be obtained from the commission (Nelson v. Associated Indem. Corp., 19 Cal.App.2d 564 [ 66 P.2d 184 ] ; Heaton v. Kerlan, 27 Cal.2d 716 [ 166 P.2d 857 ]) on the theory that the doctor’s malpractice is one of the foreseeable consequences of the original compensable injury. (Duprey v. Shane, 39 Cal.2d 781 [ 249 P.2d 8 ] ; Ash v. Mortensen, 24 Cal.2d 654 [ 150 P.2d 876 ] ; Dewhirst v. Leopold, 194 Cal. 424 [ 229 P. 30 ]; Blackwell v. American Film Co., 189 Cal. 689 [ 209 P. 999 ]; Dillard v. City of Los Angeles, 20 Cal.2d 599 [ 127 P.2d 917 ] ; Fitzpatrick v. Fidelity & Casualty Co., 7 Cal.2d 230 [ 60 P.2d 276 ]; Nelson v. Associated Indem. Corp., 19 Cal.App.2d 564 [ 66 P.2d 184 ].) This rule applies as well to a situation in which an employee is injured by the acts of a doctor done at the request of the carrier or employer. In Noe v. Travelers Ins. Co., 172 Cal.App.2d 731 [ 342 P.2d 976 ], the appellant raised the issue “ ‘[I]s an insurance carrier which steps beyond the position of carrier and directs the manner in which the injuries shall be treated ... a “third person” ’ within the meaning of Labor Code, section 3852, which preserves the employee’s actions for damages against ‘any person other than the employer?’ . . . Neither the cases nor the underlying legislation really support appellant’s af

Thus, if plaintiff seeks recovery against the employer either for its negligence in sending him to an unqualified doctor for treatment or for the negligence of the doctor in diagnosing and treating his injury, his remedy is solely before the commission. Of course this does not prevent an independent suit at law against the doctor involved for malpractice (Smith v. Golden State Hospital, 111 Cal.App. 667 [ 296 P. 127 ] ; Heaton v. Kerlan, 27 Cal.2d 716 [ 166 P.2d 857 ] ; Hazclwerdt v. Industrial Indem. Exch., 157 Cal.App.2d 759 [ 321 P.2d 831 ]) ; but the “unqualified doctor,” unnamed in the instant pleading, is neither joined as a party defendant nor sued therein for his negligence.

Coming now to his main contention that where an employer “undertakes like a physician to examine, diagnose, treat and care for the industrial injury and does so negligently, ’ ’ he may be sued in the superior court under the rule of Duprey v. Shane, 39 Cal.2d 781 [ 249 P.2d 8 ], to support his cause appellant relies upon the allegation that “the right diagnosis” of his injury “when given attention by a first aid man” warranted sending him to a hospital and giving immediate proper medical attention (Par. VIII) ; and advances the position that like Dr. Shane in the Duprey case, supra, 39 Cal.2d 781 , Walt Disney Productions, not as his employer but as a “third party,” is liable in an independent suit for the

The purpose of the act, to furnish a complete system of workmen’s compensation (Fitzpatrick v. Fidelity & Casualty Co., 7 Cal.2d 230 [ 60 P.2d 276 ]), and the power of the commission, limited to adjusting rights between employer and employee (Hazelwerdt v. Industrial Indem. Exch., 157 Cal.App.2d 759 [ 321 P.2d 831 ]), precludes the commission’s jurisdiction over “a person other than the employer” (Lab. Code, § 3852) ; thus, if recovery is sought from one outside of the employment relationship the injured party must pursue his remedy in the superior court. This plaintiff did in Duprey v. Shane, 39 Cal.2d 781 [ 249 P.2d 8 ] and an independent suit was allowed against Dr. Shane, also her employer, guilty of negligence in treating her for an injury sustained while working for him as a nurse, even though the commission had awarded her compensation for the original injury. The court held that the negligence of Dr. Shane, acting as her doctor in treating her for the injury, was that of a third party tortfeasor, which gave rise to a cause of action for malpractice in a court of law. The basis of the ruling was the "dual relationship” Dr. Shane had created with plaintiff—of employer-employee in which she worked for him as a nurse, and of doctor-patient in which, after she received the injuries during the course of her employment, she became his patient when he treated her therefor; and in the latter relationship the employer-doctor became a “person other than the employer” under section 3852 (p. 793).

Having asserted in his complaint that the employer was insured and that his injury occurred in the course of his employment, plaintiff has clearly brought his claim within the provisions of the Workmen’s Compensation Act for which he must seek relief before the Industrial Accident Commission; and in the absence of further pleaded facts which would negative the application of the act (Singleton v. Bonnesen, 131 Cal.App.2d 327 [ 280 P.2d 481 ]; Wessell v. Barrett, 62 Cal.App.2d 374 [ 144 P.2d 656 ]) and permit suit against the employer under the exception recognized by the court in Duprey v. Shane, 39 Cal.2d 781 [ 249 P.2d 8 ], no independent cause of action for negligence against it will lie. Moreover, it is apparent from his argument that facts do not exist which would ever permit plaintiff to plead his case against the employer outside of the exclusive remedy provisions of section 3601, Labor Code.

Appellant concedes the factual distinction between his and the Duprey case, supra, 39 Cal.2d 781 , but rationalizes a, justification for an extension of the rule therein to the circumstances at bar on the ground of “human concern for the welfare of the worker” (A.O.B. p. 19). But it is clear that to here permit the result in Duprey v. Shane, 39 Cal.2d 781 [ 249 P.2d 8 ], it is necessary to resort to the theory of dual legal personality in Walt Disney Productions—that of enu ployer, and that of one acting outside of the employment relationship; of what the latter would constitute we cannot say for Walt Disney Productions admittedly was not acting in the capacity of a doctor. Moreover “the law is opposed to the creation of a dual personality, where to do so is unrealistic and purely legalistic” (Duprey v. Shane, 39 Cal.2d 781 , 793 [ 249 P.2d 8 ]); and any conclusion that Walt Disney Productions bore towards plaintiff two relationships would be neither" in accord with the facts nor at all realistic.

Subsequent attempts to transform an employer or carrier into a “third person” under Duprey v. Shane, 39 Cal.2d 781 [ 249 P.2d 8 ] have met with little success, the courts being unwilling by legalistic machinations to make unwarranted inroads into the proper jurisdiction of the commission. In Hazelwerdt v. Industrial Indem. Exch., 157 Cal.App.2d 759 [ 321 P.2d 831 ], plaintiff argued that the carrier became a “third person” by virtue of his allegation of the conspiracy between it and the doctor to deprive him of care to which he was entitled under a commission award in order to minimize his injury. Rejecting the suit on the theory that the cause

Appellant seeks further opportunity to amend on the ground that the Workmen’s Compensation Act should be liberally construed and “liberal amendment privileges should be granted to a layman who is acting in propria persona” (A.O.B. pp. 26-27). The liberal construction appellant urges relates to that “in favor of jurisdiction in the Commission” not in the court, and “it would be egregious error to permit the instant action wherein all conditions for compensation concur to be prosecuted in the superior court.” (Moise v. Owens, 96 Cal.App.2d 617 , 620 [ 216 P.2d 22 ].) His argument that “liberal amendment privileges” should be extended to him because he has appeared in propria persona merits little discussion. His situation entitles him to no greater privilege or advantage than that given to one represented by counsel; in electing to represent himself “he assumes for all purposes connected with his ease, and must be prepared to be treated as having, the qualifications and responsibilities concomitant with the role he has undertaken; he is not entitled either to privileges and indulgences not accorded attorneys or to privileges and indulgences not accorded defendants who are represented by counsel. [Citation.] ” (People v. Mattson, 51 Cal.2d 777 , 794 [ 336 P.2d 937 ]; Monastero v. Los Angeles Transit Co., 131 Cal.App.2d 156 [ 280 P.2d 187 ].)

As to whether appellant could amend his pleading to state a cause of action within the court’s jurisdiction, it is apparent from his brief in which, we must assume, he presents his facts in their most favorable light, that whatever recovery he might have, is one before the Industrial Accident Commission. They present no circumstances under which an amendment would serve any useful purpose.

Four times plaintiff attempted to plead his cause in the superior court, before each amendment he was granted

Por the foregoing reasons the judgment is affirmed.

Wood, P. J., and Pourt, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied March 22, 1961.