Ross v. Erickson Construction Co., 89 Wash. 634, 155 Pac. 153

 634    ROSS v. ERICKSON CONSTRUCTION CO.
                     Statement of Case.               89 Wash.

          [No. 12747. Department One. February 17, 1916.]
          HARRY L. Ross et al., Respondents, v. ERICKSON
           CONSTRUCTION COMPANY et al, Appellants. «1»

                ROSS v. ERICKSON CONSTRUCTION CO.           635
 Feb. 1916               Opinion Per CHADWICK, J.

Corwin S. Shank, H. C. Belt, and George C. Congdon, for
appellants.

Wilson R. Gay and S. H. Kelleran, for respondents.

 636    ROSS v. ERICKSON CONSTRUCTION CO.
                     Opinion Per CHADWICK, J.          89 Wash.

and the industrial insurance law, its objects and purposes,
accomplishments, and its relation to causes of action that
had theretofore been considered as independent of the primary
cause of action.

At the time the industrial insurance law was passed, one
who had been injured by or through the negligence of an
employer could maintain an action and recover all damages
proximately traceable to the primary negligence. If the
master assumed to collect fees out of the wage of the employee
for the purpose of maintaining medical and surgical
treatment and hospital service, without deriving any profit
therefrom, he was bound to exercise due care in providing a proper
place for treatment, and in selecting physicians and surgeons.
A breach of this duty made him liable in damages for the
malpractice of the physician or surgeon. Richardson v. Carbon
Hill Coal Co., 10 Wash. 648, 39 Pac. 95; Wells v.
Ferry-Baker Lumber Co., 57 Wash. 658, 107 Pac. 869, 29 L. R. A.
(N. S.) 426; Wharton v. Warner, 75 Wash. 470, 135 Pac.
235; Simon v. Hamilton Logging Co., 76 Wash. 370, 136
Pac. 361; 3 Wharton & Stille, Medical Jurisprudence, p.
505; 5 Labatt, Master and Servant, p. 6216.

If the master retained a part of the fee for his own use and
profit, he became liable as a principal with the physician and
surgeon and answerable for his negligence or lack of skill and
learning. Sawdey v. Spokane Falls & N. R. Co., 30 Wash. 349, 70
Pac. 972, 94 Am. St. 880; Richardson v. Carbon Hill
Coal Co., 6 Wash. 52, 32 Pac. 1012, 20 L. R. A. 338; 5
Labatt, Master and Servant, p. 6214; 3 Wharton & Stille,
Medical Jurisprudence, p. 506; 2 Shearman & Redfield,
Negligence, SS 331.

If the master did not employ medical and surgical attendance,
the one suffering from his negligence could, using
ordinary care and diligence only, employ his own physician or
surgeon, and if he became the victim of malpractice, he could
recover his damages from the master. Baldwin v. Lincoln
County, 29 Wash. 509, 69 Pac. 1081; Chicago City R. Co. v.

                ROSS v. ERICKSON CONSTRUCTION CO.          637
 Feb. 1916               Opinion Per CHADWICK, J.

Cooney, 196 Ill. 466, 63 N. E. 1029; City of Dallas v.
Meyers (Tex. Civ. App.), 55 S. W. 742; Seeton v. Town of
Dunbarton, 73 N. H. 134, 59 Atl. 944; McGarrahan v. New
York, N. H. & H. R. Co., 171 Mass. 211, 50 N. E. 610.

One phase of the situation was that the workman might be
compelled to try one action to secure compensation for the
primary injury and one or more to secure compensation for
the secondary wrong; that is, the malpractice of the surgeon.

Another phase, as the legislature notes, was that, "little of
the cost of [to] the employer has reached the workman," and
his remedies were "uncertain, slow and inadequate." Then,
too, the master might have to defend an action predicated
upon the primary issue of negligence, and thereafter submit
to a second recovery for the final consequences resulting from
the malpractice of the physician employed by him. Both
master and servant were subject to the burden of protecting
and defending rights within bounds limited only by the
statute of limitations. Injustice to the laborer and hardships
to the industries of the state alike called for some plan that
would relieve the servant of the necessity of pursuing his
remedy for compensation in the courts, and the master of the
harassments, vexations, and uncertainties attending the trial
of all cases where men are called upon to defend against the
charge of negligence.

The state, in the exercise of its sovereign power, recognized
that the welfare of the whole people depends, "upon its
industries, and even more upon the welfare of its wage-worker,"
and accordingly passed a law which was designed to
compensate an injured workman without reference to the manner of
his injury or the questions of negligence, contributory
negligence, assumption of risk, or fellow servant.

The state declared its power in the following
comprehensive language:

"The state of Washington, therefore, exercising herein
its police and sovereign power, declares that all phases of the
premises are withdrawn from private controversy, and sure

 638    ROSS v. ERICKSON CONSTRUCTION CO.
                     Opinion Per CHADWICK, J.           89 Wash.

and certain relief for workmen, injured in extra hazardous
work, and their families and dependents is hereby provided
regardless of questions of fault and to the exclusion of every
other remedy, proceeding or compensation, except as 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 in this act provided." Laws of 1911,
p. 345 (3 Rem. & Bal. Code, SS 6604-1 ).

The legislature undertook to withdraw "all phases of the
premises from private controversy," and provide "sure and
certain relief for workmen," and to that end abolished "all
civil actions and civil causes of action for such personal
juries," and abolished all jurisdiction of the courts over such
cases, except as in the act provided.

"It [the act] is rounded on the basic principle that
certain defined industries, called in the act extra hazardous,
should be made to hear the financial losses sustained by the
workmen engaged therein through personal injuries, and its
purpose is to furnish a remedy that will reach every injury
sustained by a workman engaged in any of such industries,
and make a sure and certain award therefor, hearing a just
proportion to the loss sustained, regardless of the manner in
which the injury was received." State ex rel. Davis-Smith Co.
v. Clansen, 65 Wash. 156, 175, 117 Pac. 1101, 37 L. R. A.
(N. S.) 466.

In discussing the economic and sociological features of the
law, the court, in the case just cited, noticed the omissions of
the common law and the inadequacy of its remedies, and the
purpose of the act to provide a remedy that would compensate
for all injuries traceable to or incident to the hazards of the
industry. The court notes that verdicts, just and unjust,
had been rendered in personal injury cases.

"For the greater number of injuries the common law
affords no remedy at all. For this unscientific system, it is
proposed to substitute a system which will make an award in
all cases of injury, regardless of the cause or manner of its
infliction; limited in amount, it is true, but commensurate in

                ROSS v. ERICKSON CONSTRUCTION CO.           639
 Feb. 1916               Opinion Per CHADWICK, J.

some degree to the disability suffered." State ex rel.
Davis-Smith Co. v. Clausen, supra, p. 210.

The purpose to remove "all phases of the premises" from
the courts and to put upon the contributing industries the
burden of bearing the consequences of all injuries, and to
make them bear the burden of caring for the injured man in
the condition in which the state finds him, is recognized and
emphasized in Peer v. Mills, 76 Wash. 437, 136 Pac. 685,
Ann. Cas. 1915 D. 154. See page 439:

"It is a well accepted rule that remedial statutes, seeking
the correction of recognized errors and abuses in introducing
some new regulation for the advancement of the public
welfare, should be construed with regard to the former law, and
the defects or evils sought to be cured, and the remedy
provided; that, in so construing such statutes, they should be
interpreted liberally, to the end that the purpose of the
legislature in suppressing the mischief and advancing the remedy
be promoted, even to the inclusion of cases within the reason,
although outside the letter, of the statute. (36 Cyc. 1173)."

See, also, p. 440:

"To say, with appellant, that the intent of the act is
limited to the abolishment of negligence as a ground of action
against an employer only, is to overlook and read out of the
act and its declaration of principles the economic thought
sought to be crystallized into law - that the industry itself
was the primal cause of the injury and, as such, should be
made to bear its burdens. The employer and employee, as
distinctive producing causes arc lost sight of in the greater
vision that the industry itself is the great producing cause,
and that the cost of an injury suffered in any industry is
just as much a part of the cost of production as the tools,
machinery, or material that enter into that production,
recognizing no distinction between the injury and destruction of
machinery and the injury and destruction of men in so far as
each is a proper charge against the cost of production. The
legislature in this act was dealing, not so much with causes
of action and remedies, as with this great economic principle
that has obtained recognition in these later years, and it
sought, in the use of language it deemed apt, to embody this

 640    ROSS v. ERICKSON CONSTRUCTION CO.
                     Opinion Per CHADWICK, J.      89 Wash.

principle into law. That in so doing the legislative mind was
intent upon the abolishment of all causes of action that may
have theretofore existed, irrespective of the persons in favor
of whom or against whom such right might have existed, is
equally clear from the language of SS 5 of the act, containing
a schedule of awards, and providing that each workman
injured in the course of his employment should receive certain
compensation, and 'such payment shall be in lieu of any and
all rights of action whatsoever against any person whomsoever.'"

Clearly the purpose of the act was to end all litigation
growing out of, incident to, or resulting from the primary
injury, and in lieu thereof, give to the workman one recovery
by the way of certain compensation, and to make the charge
upon the contributing industries alone. That purpose is
made reasonably clear by reference to the act.

We find but one right of action reserved to an injured
workman. In SS 6 (Id., SS 6604-6), it is provided that, if
injury or death results to a workman from the deliberate
intention of his employer to produce such injury or death, the
workman, his survivors, or dependents shall have a cause of
action for any excess of damages over the amount received
in the act.

As further confirmation of the theory that the legislature
intended to remove the matter of injuries to workmen "in all
its phases" from the law courts, it will be noticed (SS 5 h; Id.,
SS 6604-5, and SS 12 c; SS 6604-12) that the legislature was
careful to provide that the compensation allowed may be
readjusted, "if aggravation of disability takes place
or be discovered after the rate of compensation shall have
been established, "and if circumstances so warrant,
may be increased or rearranged.

We must credit the legislature with knowing the history
and the then state of the law as it pertained to recoveries for
personal injuries and injuries proximately traceable thereto,
and, having such knowledge, with an intent to remove all

                ROSS v. ERICKSON CONSTRUCTION CO.           641
 Feb. 1916               Opinion Per CHADWICK, J.

rights and liabilities growing out of, or because of them,
whatever their form or number might be. It undertook to,
and did, devise a comprehensive scheme as far removed from
the domain of legal rights, obligations and duties as they had
been defined at common law, as it was possible.

The act is grounded in a humanitarian impulse. It takes
account only of the place of injury and the extent of the
disability, and compensates for the conditions resulting from the
primary injury; or, in other words, it will reject no element
of disability if it has accrued in consequence of the first hurt,
or as an aggravation arising from any collateral contributing
cause.

The legislature knew that workmen had been compelled to
meet the defense of nonliability on the part of the employer,
who might plead the malpractice of the attending surgeon as
a bar to recovery, and if they pursued their remedy against
the malpractitioner, they might be subject to the hazard of
expert opinion evidence, from which a jury may generally
find a sufficient warrant to follow its own inclination. There
was no assurance of recovery against either party or against
either offender. On the other hand, the employer and faithful
and competent physicians and surgeons bad been put to the
hazard of ill-founded suits. The deserving had gone from the
courts, their wrongs unredressed. The undeserving had
taken that which, in good conscience, was not their own, and
to cure all, the legislature passed the industrial insurance
covering "all phases of the premises."

These things seem clear to us, but it must be admitted that
we are exploring a new field, and there is but little to offer to
those who find no assurance for their opinions unless
something is found to throw upon the shrine of "authority" and
"precedent." To all such, we can say no more than that a
diligent search has convinced us that there are no cases "in
point." But to confirm our conclusion that the consequences
of malpractice is an element which will be considered and

 642    ROSS v. ERICKSON CONSTRUCTION CO.
                Opinion Per CHADWICK, J.           89 Wash.

compensated for by the state, we can offer a few cases bearing
slightly.

In Gregutis v. Waclark Wire Works, 86 N.J. L. 610, 92
Atl. 354 it was sought to maintain an action under what was
there known as the "Death Act" (P. L. 1848, p. 151; 2
Comp. St. 1910, p. 1907). It is an act like Rem. & Bal.
Code, SS 183 (P. C. 81 SS 15), giving a right of action for the
wrongful death of a person. The court sustained a demurrer
upon the ground that the workmen's compensation act had
provided an exclusive remedy. The court said:

"Since that act [the death act] limited the relief granted
thereby to recovery in cases where the decedent would, if
death had not ensued, been entitled to maintain an action, we
must consider whether the plaintiff's intestate, if living,
could have maintained an action."

After due consideration and discussion, the workmen's
compensation act was held to be exclusive, the conclusion of
the court being:

"It will be observed that the workmen's compensation act
deals with cases where the injury results in death, and
paragraph 8 provides that, where the contract of hiring is
subject to section 2 of the act such agreement shall be a
surrender by the parties thereto of their rights to any
other method, form, or amount of compensation or determination
thereof than as provided in section 2. . . .

"Obviously the remedy thereby provided in case of death,
where the contract of the employee is subject to section 2, is
inconsistent with the remedy provided by the death act,
because the latter provides for a different procedure
and different rule of damages. Since the workmen's compensation
act by its terms repeals all inconsistent legislation,
the rights and remedies thereby given are substituted for those
theretofore provided by the death act."

In In re Brightman, 220 Mass. 17, 107 N. E. 527, it was
held that, where an employee had overexerted himself in
saying his effects from a barge which was on fire, thus
aggravating a heart disease with fatal results, an award would be
upheld. The court evidently considered and rejected the doctrine

                ROSS v. ERICKSON CONSTRUCTION CO.           643
 Feb. 1916               Opinion Per CHADWICK, J

of intervening agency and aggravation independent of
a primary wrong, and looked only to the purpose of the law.

"In the case at bar there may be found to be apparent to
the rational mind a causal connection between the
employment and the thing done by the employee at the time of the
sinking of the lighter. . .

"Acceleration of previously existing heart disease to a
mortal end sooner than otherwise it would have come is an
injury within the meaning of the workmen's compensation
act."

So in In re Sponatski, 220 Mass. 526, 108 N. E. 466, a
workman had been hurt by a splash of molten metal striking
him in the eye. While insane as a result of the pain suffered
by reason of the injury, he threw himself from a window and
was fatally injured. It was held that his widow was entitled
to an award; that it was immaterial whether the death was or
was not a reasonable and likely consequence, the inquiry
relating solely to the chain of physical causation between the
injury and the death. We think the importance of the
inquiry warrants us in reproducing the holding of the court:

"It is of no significance whether the precise physical harm
was the natural and probable or the abnormal and
inconceivable consequence of the employment. The single inquiry
is whether in truth it did arise out of and in the course of
that employment. If death ensues, it is immaterial whether
that was the reasonable and likely consequence or not; the
only question is whether in fact death 'results from the
injury' . . . When that is established as the cause, then
the right to compensation is made out. If the connection
between the injury as the cause and the death as the effect is
proven, then the dependents are entitled to recover even
though such a result before that time may never have been
heard of mid might have seemed impossible. The inquiry
relates solely to the chain of causation between the injury
and the death."

In Burns' Case, 218 Mass. 8, 105 N. E. 601, the
immediate cause of death was bed sores which finally produced
blood poisoning. A finding that death resulted from the injury

 644    ROSS v. ERICKSON CONSTRUCTION CO.
                Opinion Per CHADWICK, J.           89 Wash.

was upheld. The court quoted from McDonald v. Snelling,
14 Allen 290, 296, 92 Am. Dec. 768:

"'The mere circumstance that there have intervened,
between the wrongful cause and the injurious consequence, acts
produced by the volition of animals or of human beings, does
not necessarily make the result so remote that no action can
be maintained. The test is to be found, not in the number of
intervening events or agents, but in their character, and in
the natural and probable connection between the wrong done
and the injurious consequence. So long as it affirmatively
appears that the mischief is attributable to the negligence
as a result that might reasonably have been foreseen as
probable, the legal liability continues.' Nor would it have
been material, if that had been found to be the fact, that the
bedsore was due to the mistake or the negligence of the
physicians acting honestly."

An award was upheld in Beadle v. Milton, 5 W. C. C. 55.
It was there complained that the workman had been the
victim of malpractice. Although it was found that the
treatment was not defective, it was said:

"Assuming it to have been defective, I hold that it would
have been no defense to this application, inasmuch as the
applicant had done all he could in going to the hospital and
submitting to the treatment administered there,
independently of his having gone there at the desire and with the
privity and consent of the respondants."

In Smith v. Northern Pac. R. Co., 79 Wash. 448, 453, 140
Pac. 685, the law is broadly stated to be:

"If a person receives an injury through the negligent act
of another, and the injury is afterwards aggravated, and a
recovery retarded through some accident not the result of
want of ordinary care on the part of the injured person, he
may recover for the entire injury sustained, as the law
regards the probability of such aggravation as a sequence and
natural result likely to flow from the original injury."

In Brown v. Kent, 6 Butterworths' W. C. C. 745, a
workman who had been injured in the knee, necessitating an
operation, was stricken with scarlet fever contracted in the

                ROSS v. ERICKSON CONSTRUCTION CO.      645
 Feb. 1916               Opinion Per CHADWICK, J.

hospital. The contracted disease settled in the knee joint,
making an injury that otherwise would have been of no
consequence a permanent disability. It was held that the
workman was entitled to compensation. The judges quoted from
Dunham v. Clare (1902), 2 K. B. 292, 4 W. C. C. 102, as
follows:

"The question whether death resulted from the injury
resolves itself into an inquiry into the chain of causation. If
the chain of causation is broken by a novus actus interveniens,
so that the old cause goes, and a new one is substituted for
it, that is a new act, which gives a fresh origin to the after
consequences."

And thus observed:

"It may well be that the fever, and the condition of the
patient caused by it, much increased the risk of the
formation of pus, but it was the old wound which was giving the
trouble - the old wound which was suppurating. It was the
evidence of Dr. Bone, accepted and agreed to by both parties,
that if there had not been any accident and consequent
injury to the knee, the scarlet fever could not have caused the
injury or the incapacity in question. The result is necessarily
that the incapacity is the result of the accident to the
knee, although probably aggravated by the scarlet fever.
This entitles the workman to compensation for the accident
on the footing that the incapacity caused by it is
continuing."

Other cases of the kind referred to are collected in 8 Neg.
& C. C. Cases, p. 1025, and 6 Neg. & C. C. Cases, p. 624.
These holdings are consonant with the reasoning of this court
in the case of Zappala v. Industrial Insurance Commission,
82 Wash. 314, 144 Pac. 54, and cases cited therein.

It would seem that, having an original right to recover
against the master for the consequences of malpractice, and
a present right to submit his condition for appraisement
notwithstanding such malpractice, the respondents fall within the
statute. It does not merely deny a right of action, but
abolishes all civil actions and all civil causes of action to

 646    ROSS v. ERICKSON CONSTRUCTION CO.
                         Opinion Per CHADWICK, J.      89 Wash.

which he might have resorted, as well as the jurisdiction of
the courts to entertain such causes.

But it is said that a holding that the master and the
surgeon are not liable to answer for an aggravated condition
resulting from the ill treatment of a wound, or the malpractice
of a surgeon, may result in grevious wrong in that only a
partial recovery may be had.

What is or what is not a full recovery in a given case is a
relative question with which we have nothing to do. It is
enough that the legislature has fixed a schedule of recoveries
within which the discretion of the commissioners may move,
subject to a "court review" as provided in the act, and in
lieu of a system that often brought a full recovery in
unmeritorious cases and as often no recovery at all in meritorious
cases; it has substituted a system that will insure an award
in all cases.

It may be asserted, without doing violence to the rules of
logic or of law, that whatever sum is fixed for partial or
total disability is theoretically the exact sum necessary to
measure and compensate the wrong. The logic of our
former decision in State ex rel. Davis-Smith Co. v. Clausen,
supra, is that the admeasurement of damages in money for
injuries to employees is within the police power of the state,
and it is axiomatic that the courts will not restrain or
enlarge upon the exercise of that power. Nor will it
substitute its judgment for that of the legislature upon any
question of fact arising under it. State v. Somerville,
67 Wash. 638, 122 Pac. 324; State v. Mountain Timber Co.,
75 Wash. 581, 135 Pac. 645.

Counsel put this case to us: Suppose a workman has his
finger crushed; a slight wound which if permitted to heal or
if properly treated would result in no evil consequences. He
is sent to a hospital and blood poison results by reason of
negligent and unskillful treatment, and his arm is
amputated that his life may be saved. Can it be said that the
legislature intended to deny a recovery for such malpractice,

                ROSS v. ERICKSON CONSTRUCTION CO.           647
 Feb. 1916               Opinion Per CHADWICK, J.

it being an injury entirely independent of the injury
suffered in his employment.

We have passed the question of allowance and the amount
of compensation and will concern ourselves only with the
question submitted. Counsel reason from a wrong premise.
The resultant injury or "aggravation," to use the words
of the statute, is not an independent injury. It is
proximate to the original hurt and is measured as such.

Surgical treatment is an incident to every case of injury
or accident and is covered as a part of the subject treated.
By the law, the commission is given authority, SS 24 (Id.,
SS 6604-24), subd. 4, to "supervise the medical, surgical and
hospital treatment to the intent that same may be in all
cases suitable and wholesome." When a workman is hurt
and removed to a hospital or is put under the care of a
surgeon, he is still, within every intendment of the law, in
the course of his employment and a charge upon the industry,
and so continues as long as his disability continues.

The law is grounded upon the theory of insurance against
the consequence of accidents. The question is not whether
an injured workman can recover against any particular
person, but rather is his condition so directly or proximately
attributable to his employment as to invoke the benevolent
design of the state.

In construing statutes, courts have always looked to
possible consequences as an efficient aid in clearing doubts. It
surely was not the intention of the legislature to leave it to
the commission to apportion the compensation allowed by the
state with some landed judgment that might be rendered in
a potential suit brought against the attending physician, or
to encourage a settlement for a lesser sum than the amount
really due by holding out the hope or suggestion that the
claimant had a cause of action against a surgeon.

Counsel insist that our conclusion will lead to absurd
consequences; that we must thereafter hold that an injured

 648    ROSS v. ERICKSON CONSTRUCTION CO,
                Opinion Per CHADWICK, J.           89 Wash.

workman who has had compensation has no right to sue for
any tort, and that no person is liable to him for a tort
committed during the time of disability; that he can be wounded
and injured at will, provided the injury is confined to the
original hurt.

We do not so read the statute. It is only such results as
are proximately traceable to the original hurt that are
within the contemplation of the statute. An independent cause,
that in no way proximates the act out of which the right to
compensation flows, might afford a ground of recovery, and
might not be considered an "aggravation" warranting an
increase of compensation within the meaning of the act. We
will meet these questions when a state of facts is presented
which will call for their solution.

Nor will our holding bar a right to recover upon an
accident policy as is suggested. That right rests upon a
contract which is independent of the subject treated by the
statute, and with parties with whom it has no concern.

The respondent has no cause of action. The case is
reversed, and remanded with directions to dismiss.

MORRIS, C.J., FULLERTON, and MOUNT, JJ., concur.