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October 28, 1954

William E. SCHULZ, Plaintiff,

The opinion of the court was delivered by: DRIVER

Plaintiff brought this action for damages for personal injury. Defendant, before answer, with one supporting affidavit, has moved for summary judgment. *fn1" This court has jurisdiction based upon diversity of citizenship. The facts, which must be regarded as undisputed for the purpose of passing upon the motion, as they appear in plaintiff's complaint and defendant's uncontroverted affidavit, are as follows:

On October 16, 1952, plaintiff, while employed as an electrician by Bunker Hill & Sullivan Mining Company at Kellogg, Idaho, was injured as the result of an accident arising out of, and in the course of his employment. The injury consisted of a fracture of the neck of the femur. In the course of surgical treatment, a plate and screws were placed in plaintiff's thigh. On February 16, 1954, at the request of the defendant (who was the surety or insurance carrier of plaintiff's employer) the plaintiff submitted to a physical examination by a Spokane physician selected and employed by defendant. The examination was not for the purpose of treating plaintiff, but for the sole purpose of ascertaining his physical condition for the information of defendant. In conducting the examination the physician failed to exercise ordinary care, handled the plaintiff in a rough and unreasonable manner, and thereby caused a fracture of the plate in his thigh, and a new fracture of the femur. As a result of the additional injury, plaintiff was obliged to undergo another surgical operation, suffered severe pain, and sustained permanent disability, to his damage in the amount of $ 40,120. Pursuant to the Idaho Workmen's Compensation Act *fn2" defendant paid plaintiff his medical and hospital expenses and disability compensation from the date of the original accident.

 In this action, defendant, as insurance carrier, stands on precisely the same footing so far as liability to plaintiff is concerned, as plaintiff's employer. If plaintiff could not recover against his employer on the claim advanced in his complaint, he cannot recover against the defendant. *fn3"

 In Sarber v. Aetna Life Ins. Co., cited in footnote 3, an injured workman, subject to the provisions of the Workmen's Compensation Act of California, sought recovery of damages from his employer's insurance carrier for aggravation of his injury caused by negligent medical treatment furnished by a physician at the instance of defendant carrier. The court held that the original accident was the proximate cause of the aggravation of injury resulting from the improper medical care; that the injury, therefore, was compensable under the Workmen's Compensation Act; and that, the remedy provided by the Act being exclusive of all other remedies, common law or statutory, as between the employee on the one hand and the employer and insurance carrier on the other, the plaintiff employee's action against the insurance carrier could not be maintained. In the opinion, Judge Rudkin, an able jurist who was then a Circuit Judge but formerly had been one of my predecessors on this court, said:

 Judge Rudkin's pronouncement was made in 1928, it is true, but only last year (July 11, 1953), District Judge Morris of the United States District Court, District of Columbia, in a similar case, Fernandez v. Gantz, D.C., 113 F.Supp. 763, 764, restated the rule in substantially the same language, as follows:

'Under the great weight of authority, however, the employer is liable for all legitimate consequences following an accident, including unskillfulness or error of judgment of the physician furnished as required, and the employee is entitled to recover under the schedule of compensation for the extent of his disability, based on the ultimate result of the accident, regardless of the fact that the disability has been aggravated and increased by the employer's selected physician, and that this remedy is exclusive.' *fn4"
Plaintiff tacitly concedes that the rule as stated in the foregoing quotation is supported by 'the great weight of authority'. He points out, however, that his claim is based upon the Idaho Workmen's Compensation Act and contends that the construction placed upon the Act by the Idaho Supreme Court, which construction this court is bound to accept, sanctions his right to assert his claim against the defendant. I agree that the construction of a statute of Idaho by the highest court of that state should be followed even though not in accord with the decisions of other states upon similar statutes. *fn5" I do not agree that there is any controlling decision by the Idaho Court on the issue raised here by defendant's motion.
Plaintiff relies upon Hancock v. Halliday, 65 Idaho 645, 150 P.2d 137, 154 A.L.R. 295. There, Hancock, a miner, who had suffered an injury as the result of an industrial accident, sought recovery of damages for aggravation of his injury resulting from the negligence of physicians who had contracted with his employer to furnish hospital and medical care to its employees. The action was brought against the physicians only and neither the employer nor the insurance carrier was named as a defendant. The complaint did not show whether Hancock had received any award under the Idaho Workmen's Compensation Act. The trial court sustained a demurrer to the complaint and entered judgment for defendants. The judgment was reversed on appeal by a sharply divided Supreme Court of Idaho. *fn7"
In considering the question whether the injury caused by the claimed malpractice was 'separable' from the original injury, the author of the main opinion stated that the aggravation complained of was not the proximate result of the accident but rather the result of the negligence of the physicians who treated the injury. However, careful analysis of the opinion, the special concurrence, and the dissent, plainly discloses that the court did not take the position that the second, or aggravation injury inflicted by the physicians was not in the course of Hancock's employment, and not compensable under the Workmen's Compensation Act. The court regarded the injury as covered by the Act but reasoned that the physicians were persons other than the employer, and that the injured workman, therefore, had the right at his option, to claim compensation under the Act or to bring an action for damages against the physicians as such other persons. Hancock's action was considered a permissible exercise of his statutory option to sue third persons for damages. By way of illustration, I quote the following excerpt from the principal opinion:
'* * * He [the employee] 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, 46 Cal.App.2d 507, 116 P.2d 133, 136, 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 physicians who treated plaintiff's industrial injury, is sought against the physicians only, and neither the employer nor the latter's insurance carrier is a party, plaintiff may recover in an ordinary civil action for malpractice." (Emphasis supplied.) 150 P.2d at page 146.
On rehearing, the Court adhered to its former decision, 150 P.2d 149, and for ...

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