Fitzpatrick v. Fidelity & Casualty Co. of New York

WASTE, C. J.

Plaintiffs appeal from a judgment entered for the defendants upon the sustaining of demurrers, general and special, to the second amended complaint without leave to amend.

[232]

The complaint alleges that on or about October 9, 1931, the deceased, Henry 0. Fitzpatrick, while acting in the course and scope of his employment as a plumber sustained an injury to his back; that at the time of said injury the employer of deceased carried compensation insurance with the defendant casualty company; that the injury occurred at Napa, California, and deceased was there treated by his personal physician who applied a cast to his back thus immobilizing the affected vertebrae; that upon receiving notice of the injury the insurance carrier of the employer insisted that the deceased come to San Francisco to be examined by its investigators upon pain of its refusal to pay compensation; that deceased, though protesting his inability to travel the required distance, ■ thereafter, and pursuant to such compulsion, came to San Francisco and was directed to go to the office of the insurance carrier’s investigators, also named herein as defendants, who were engaged to examine, interrogate and investigate injured persons seeking workmen’s compensation; that at all times material here said investigators and one Nolan, named as a defendant, were the agents, servants and employees of the defendant insurance carrier and acting within the scope of their employment.

The complaint then goes on to allege that the investigators and Nolan, over the protest of deceased that he would suffer great pain thereby, removed the cast from his back; that a few days later the defendant Nolan applied a new cast but in so doing carelessly and negligently placed the same so as not to immobilize the affected vertebrae; and that solely as a result thereof the deceased died December 15, 1931, to the damage of the plaintiffs in the sum of $50,000.

Among other grounds, the special demurrers specified uncertainty of the complaint because of its failure to aver whether the defendants who are alleged to have been engaged to and did examine, interrogate and investigate the deceased, did so in a medical or lay capacity. As we shall hereinafter more fully point out, the aggravation of an industrial injury or the infliction of a new injury resulting from its treatment or examination are compensable under the provisions of the Workmen’s Compensation Act a,nd, therefore, within the exclusive cognizance of the Industrial Accident Commission. This being so, the de