Goodyear Tire & Rubber Co. v. Hanby

WORKS, P. J.

James Steiner commenced an action in respondent court against petitioner in this proceeding. Later he filed an amended complaint therein. This pleading was in two counts.

It was alleged in the first count, in effect and among other things, that Steiner was injured on the head by a falling steel bar while in the course of an employment under petitioner and that the injury arose out of the employment, that the injury consisted of two depressed fractures of the skull, that on a certain date the Industrial Accident Commission gave Steiner an award against petitioner because of his injury, directing that petitioner “furnish to applicant forthwith a decompression operation together with the medical and hospital treatment reasonably necessary to cure and relieve appellant from the effects of his injury”, that petitioner did furnish a decompression operation but for only one of the depressed fractures, that, therefore, petitioner did not comply with the award, although Steiner demanded from petitioner a further operation for the second depressed fracture, that as a direct consequence of the failure and refusal to furnish the second operation Steiner suffered “damage to his brain, has been injured in his health and constitution and made sick generally in [and(?)] his mental and intellectual faculties have been impaired, has suffered and continues to suffer great and agonizing pain in his head”, thereby rendering him unable to pursue any occupation, all to his damage in the sum of $50,000, and that no remedy is open to him except by suit in respondent court to compel specific performance of the award and to recover the damages alleged.

The second count repeated, by reference, all the allegations of the first count, and averred in addition that ten days before the decompression operation was performed Steiner and petitioner entered into an agreement which was “as follows: That defendant shall choose and employ a surgeon to perform said-decompression operation on plaintiff’s head;

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that in consideration of plaintiff’s consenting to said selection by defendant of the surgeon to perform such operation, the defendant agreed to furnish plaintiff with an operation or operations that may be necessary for the removal of all the depressed fractures on plaintiff’s head, and to treat the plaintiff until reasonably cured of said injury”; that the operation was performed as alleged in the first count, that demand was thereafter made upon petitioner “to comply fully with the terms of the agreement heretofore stated, and to furnish an operation for the remaining depressed fracture”, etc., that petitioner refused and still refuses to comply with the demand, “in consequence whereof plaintiff has endured and still endures great physical and mental suffering”, etc., to his damage in the sum of $50,000.