Nelson v. Associated Indemnity Corp.

[565]

CRAIL, P. J.

This appeal is from a judgment in favor of defendant, entered after a general • demurrer to plaintiff’s complaint was sustained without leave to amend, and from an order denying a motion for permission to amend.

The following facts appear in the proposed amended complaint : Plaintiff, while employed by one Spicer, received an injury to his right elbow. The defendant corporation was the compensation-insurance carrier of Spicer. After proceedings duly had before the Industrial Accident Commission, an award was made in favor of plaintiff and against the defendant corporation, requiring weekly payments for an indefinite period—until termination of plaintiff’s disability. Spicer was relieved from all liability and the defendant was substituted in his place under the Workmen’s Compensation Act. Defendant made the compensation payments to plaintiff for a period of approximately fourteen months, then discontinued them. Defendant stated that it would commence making the payments again if plaintiff would submit to an operation for the purpose of improving his condition. Plaintiff agreed to submit to the operation, which was performed by defendant’s physicians. The operation was unsuccessful and, as a result of the unskillful and negligent manner in which the operation was performed, plaintiff’s elbow was rendered worse, his disability was aggravated, and his disability is now permanent. Thereupon, plaintiff commenced this action for the purpose of recovering damages from the insurance carrier for the negligence of the physicians, alleged to be its agents, in performing the operation. The insurance carrier is the only defendant.

It is admitted by the plaintiff that the defendant’s relation to the case is the same as that of an employer and that defendant ‘ ‘ is liable to the same extent as the employer would be ’ ’. Indeed, he states this as one of his large-type contentions. It is for this reason undoubtedly that the plaintiff sets out at great length on the face of his complaint the facts of the employment by Spicer, the injury while engaged in said employment, the proceedings before the Industrial Accident Commission and the award against defendant including the release of Spicer, all of which ordinarily would be immaterial in a malpractice case.

The sole question necessary for determination on this appeal is: Does the plaintiff have a remedy against defendant before