Summary
holding Act does not negate right to pursue claims against negligent third parties, including co-employees, for injuries in the workplace
Summary of this case from Leeper v. AsmusOpinion
No. 41765.
October 9, 1950.
The facts and holding of the opinion are adequately summarized in the headnote.
WORKMEN'S COMPENSATION: Physicians and Surgeons: Aggravation of Injury Through Malpractice by Employer's Physician: Employee's Cause of Action Against Physician Not Abrogated by Workmen's Compensation Act. An employee who has sustained a compensable injury under the Workmen's Compensation Act and has had such injury aggravated by the malpractice of the physician furnished by his employer or insurer, can maintain an action against the physician for such malpractice. The physician is a "third person" within the meaning of Sec. 3699 R.S. 1939. The employee may bring the action, although subject to the employer's right of subrogation under the statute. (Hanson v. Norton, 340 Mo. 1012 is overruled.)
Appeal from Circuit Court of St. Louis County; Hon. Fred E. Mueller, Judge.
REVERSED AND REMANDED.
Orr, Pflager, Foulis Andreas for appellant.
(1) The Missouri Workmen's Compensation Act, Chapter 29, R.S. 1939, and, particularly, Sections 3691 and 3699 thereof, have never been construed as barring the prosecution of a malpractice suit against a physician by an injured employee covered by the Workmen's Compensation Act, for aggravation of his original injury, except where the employee has accepted a final award of compensation. Hanson v. Norton, 340 Mo. 1012, 103 S.W.2d 1. (2) Secs. 3691 and 3699, R.S. 1939, have also been construed as preventing an injured employee covered by the Workmen's Compensation Act, who has accepted a final award of compensation through the Workmen's Compensation Commission, from successfully prosecuting a suit against his employer's insurer for aggravation of his injury by a physician furnished by his employer. Hughes v. Maryland Casualty Co., 229 Mo. App. 472, 76 S.W.2d 1101. (3) However, no Missouri appellate court has passed upon the right of an employee who has not accepted a final award of compensation through the Workmen's Compensation Commission to prosecute an action against a physician employed by his employer, for aggravation of his original compensable injury. (4) The courts of other jurisdictions have taken somewhat divergent views as to the right of an employee, covered by the Workmen's Compensation Act, to maintain a separate action for aggravation of his original compensable injury against a malpracticing physician and some early cases implied that the employee's exclusive remedy was under the Workmen's Compensation Act. See cases collected in: 39 A.L.R. 1276; 82 A.L.R. 932; 139 A.L.R. 1010; 154 A.L.R. 315. (5) Some jurisdictions have even passed statutes specifically providing that employers shall not be liable in damages for malpractice by a physician or surgeon furnished pursuant to the provisions of the law, but the consequences of any such malpractice shall be deemed part of the injury resulting from the accident and shall be compensated for as such under the Workmen's Compensation Law. North Carolina Workmen's Compensation Law, Sec. 26, Code 1931, Sec. 8081 (h.h.); Georgia Laws 1920, pp. 167, 182, sec. 27; Hoover v. Globe Indemnity Co., 163 S.E. 758; McConnell v. Hames, 164 S.E. 476. (6) The courts of a large majority of Missouri's sister states, however, have construed their statutes, many of them quite similar to our Workmen's Compensation Act, as permitting maintenance of an action for malpractice against a physician who negligently aggravates the employee's injury, where the employee has not accepted a final award of compensation. All of the comparatively recently decided cases that we find have so held. Baker v. Wycoff, 95 Utah 199, 79 P.2d 77; Pawlack v. Hayes, 162 Wis. 503, 156 N.W. 464, L.R.A. 1917 A. 392; Seaton v. U.S. Rubber Co., 61 N.E.2d 177, 223 Ind. 404; Hancock v. Halliday, 65 Idaho 645, 150 P.2d 137, 154 A.L.R. 295; Smith v. Coleman, 46 Cal.App.2d 507, 116 P.2d 133; Powell v. Galloway, 229 Ky. 37, 16 S.W.2d 489; McGough v. McCarthy Imp. Co., 206 Minn. 1, 287 N.W. 857; Parchefsky v. Kroll Bros., 267 N.Y. 410, 196 N.E. 308, 98 A.L.R. 1387; Froid v. Knowles, 95 Colo. 223, 36 P.2d 156; Ruth v. Weatherspoon-Englar Co., 98 Kan. 179, 157 P. 403, L.R.A. 1916 E 1201; Huntoon v. Pritchard, 371 Ill. 36, 20 N.E.2d 53, 7 N.C.C.A. (N.S.) 516; Keen v. Allison, 166 Tenn. 218, 60 S.W.2d 158; Benson v. Sioux Falls Medical Surgical Clinic, 252 N.W. 864, 62 S.D. 324; 3 Schneider's Workmen's Compensation Text, Permanent Ed., sec. 841, p. 209. (7) Approximately half of the cases cited under Point (6) allow recovery on the theory that the suit for malpractice has no connection with the original injury for which compensation may be had under the Workmen's Compensation Act. McGough v. McCarthy Imp. Co., 206 Minn. 1, 287 N.W. 857; Froid v. Knowles, 95 Colo. 223, 36 P.2d 156; Smith v. Coleman, 46 Cal.App.2d 507, 116 P.2d 133; Ruth v. Weatherspoon-Englar Co., 98 Kan. 179, 157 P. 403; Huntoon v. Pritchard, 371 Ill. 36, 20 N.E.2d 53; Powell v. Galloway, 229 Ky. 37, 16 S.W.2d 489; Keen v. Allison, 166 Tenn. 218, 60 S.W.2d 158; Benson v. Sioux Falls Medical Surgical Clinic, 252 N.W. 864, 62 S.D. 324. (8) The New York, Wisconsin, Indiana, Idaho and Utah cases cited under Point (6), however, allow recovery upon the theory that the physician, whether hired by the employer or not, is a third party within the contemplation of their Compensation Acts. Pawlak v. Hayes, 162 Wis. 503, 156 N.W. 464; Seaton v. U.S. Rubber Co., 61 N.E.2d 177, 223 Ind. 404; Hancock v. Halliday, 65 Idaho 645, 150 P.2d 137, 154 A.L.R. 295; Baker v. Wycoff, 95 Utah 199, 79 P.2d 77; Parchefsky v. Kroll Bros., 267 N.Y. 410, 196 N.E. 308, 98 A.L.R. 1387. (9) Since legal memoranda were submitted to the trial court in the instant case upon "Motion to Dismiss Plaintiff's Petition," the highest Courts of two additional states; namely, Maine and West Virginia, have approved the reasoning of the majority view announced in the decisions cited under Point (6), supra, and repudiated the contention that their Workmen's Compensation Law relieved a malpracticing physician from any liability for aggravating an employee covered by the act's compensable injury. Makarenko v. Scott, 55 S.E.2d 88; Mitchell v. Peaslee, 63 A.2d 302. (10) In the trial court appellee relied upon Michigan, Oklahoma, Washington and Iowa cases as precedents precluding plaintiff's maintaining his instant action for malpractice but except for the decision in Paine v. Wyatt, 217 Iowa 1147, 251 N.W. 78, the other decisions cited by appellee below are all readily distinguishable and have been so distinguished in subsequent decisions. Said cases relied upon by appellee in the trial court other than Paine v. Wyatt, were: Overbeck v. Nex, 261 Mich. 156, 246 N.W. 196; Markley v. White, 168 Okla. 244, 32 P.2d 716; Alexander v. Von Wedel, 169 Okla. 341, 37 P.2d 252; Anderson v. Allison, 12 Wn.2d 487, 122 P.2d 484.
Doris J. Banta and Carter, Bull McNulty for respondent.
(1) Under the law of the State of Missouri plaintiff-appellant stated no cause of action against defendant-respondent in his amended petition and may not recover against respondent for malpractice, as his injury, including its aggravation, if any, was compensable under the Missouri Workmen's Compensation Law and he has already been compensated thereunder. Hanson v. Norton, 340 Mo. 1012, 103 S.W.2d 1; Sec. 3691, R.S. 1939; McKenzie v. Missouri Stables, Inc., 225 Mo. App. 64, 34 S.W.2d 136; Hughes v. Maryland Casualty Co., 229 Mo. App. 472, 76 S.W.2d 1101; Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153; Gardner v. Stout, 342 Mo. 1206, 119 S.W.2d 790; State ex rel. Sei v. Haid, 332 Mo. 1061, 61 S.W.2d 950; Sciortino v. Dimon S.S. Corp., 39 F.2d 210. (2) Logic is with the rule announced by this court in Hanson v. Norton, and if for any reasons of public policy it should be changed, the matter is one for the Legislature and not for the courts. Prosser, Torts, p. 362; Restatement of Torts, sec. 457; Persten v. Chesney, 212 S.W.2d 469; Hughes v. Maryland Casualty Co., 229 Mo. App. 472, 76 S.W.2d 1101; Paine v. Wyatt, 217 Iowa 1147, 251 N.W. 78. (3) The law of numerous other states is in accord with that of Missouri. Williams v. Dale, 139 Or. 105, 8 P.2d 578, 82 A.L.R. 922; Markley v. White, 168 Okla. 244, 32 P.2d 716; Alexander v. Von Wedel, 169 Okla. 341, 37 P.2d 252; Anderson v. Allison, 12 Wn.2d 487, 122 P.2d 484; Ross v. Erickson Const. Co., 89 Wn. 634, 155 P. 153; Burns v. Vilardo, 26 N.J. Misc. 277, 60 A.2d 94; Makarenko v. Scott, 55 S.E.2d 88; Hinkelman v. Wheeling Steel Corp., 114 W. Va. 269, 171 S.E. 538. (4) There is no great weight of authority, taking a view of the law on the question here in issue, different from that held by this court. Hughes v. Maryland Casualty Co., 229 Mo. App. 472, 76 S.W.2d 1101; Note, 154 A.L.R. 315; Pawlak v. Hayes, 162 Wis. 503, 156 N.W. 464, L.R.A. 1917A 392; Seaton v. U.S. Rubber Co., 223 Ind. 404, 61 N.E.2d 177; Hancock v. Halliday, 65 Idaho 645, 150 P.2d 137, 154 A.L.R. 295; Mitchell v. Peaslee, 63 A.2d 302; Makarenko v. Scott, 55 S.E.2d 88.
Jacob E. Schumacher sued C.H. Leslie, a physician, for $10,420 damages for alleged malpractice. Cast on defendant's motion to dismiss for failure to state a claim against defendant, plaintiff has appealed. Plaintiff says the question is whether an employee, covered by the Workmen's Compensation Act, who has sustained a compensable injury under said Act and has had such injury aggravated by the malpractice of the physician furnished by his employer or insurer, can maintain an action against the physician for malpractice if he has not accepted a "Final Award of Compensation" under the Act. We do not detail the allegations [915] of plaintiff's petition as to do so would serve no useful purpose.
The case turns on the construction of §§ 3691 and 3699, R.S. 1939, Mo. R.S.A., of Chapter 29, relating to Workmen's Compensation. Said sections, so far as material, provide:
"If both employer and employee have elected to accept the provisions of this chapter, the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person. The rights and remedies herein granted to an employee, shall exclude all other rights and remedies of such employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter. * * *" § 3691, supra.
"Where a third person is liable to the employee * * *, for the injury * * *, the employer shall be subrogated to the right of the employee * * * against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee * * *, but such employer may recover any amount which such employee * * * would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee * * *, and shall be treated as an advance payment by the employer, on account of any future installments of compensation." § 3699, supra.
We agree with defendant that Hanson v. Norton (1937), 340 Mo. 1012, 103 S.W.2d 1, is "in point"; and that it is not to be distinguished by the fact that Hanson accepted the "Final Award of Compensation" under the Act, and received full satisfaction, whereas plaintiff has refused to accept part of the compensation due him under the Act and has not received full satisfaction. The trial court properly deferred to Hanson v. Norton for the latest rulings on the issues. Plaintiff also argues that he is entitled to maintain this action as against a "third person" within § 3699, supra, and also that the Workmen's Compensation Act has not taken away his common law action against the physician who aggravated his injury. After carefully considering the applicable Missouri statutes and case law and the cases from other jurisdictions, we conclude we should rechart our course and Hanson v. Norton should not be followed.
The provisions of the Workmen's Compensation acts in the different states are variously worded and holdings under the differently worded statutes need not be developed in detail as the issue is to be determined under the applicable Missouri statutes and case law.
Among the cases reaching the conclusion that no recovery can be had by an injured employee, who has received compensation under a compensation act, against a physician for malpractice resulting in an aggravation of his injury under statutes variously worded are the cases cited in footnote 1.
Williams v. Dale (1932), 139 Or. 105, 8 P.2d 578, 82 A.L.R. 922, 925; Paine v. Wyatt, 217 Iowa 1147, 251 N.W. 78, 80 [4, 5]; Markley v. White (1934), 168 Okla. 244, 32 P.2d 716, 717 [2]; Alexander v. Von Wedel (1934), 169 Okla. 341, 37 P.2d 252, 253 [2]; Anderson v. Allison (1942), 12 Wn.2d 487, 122 P.2d 484, 486, 488 [1], 139 A.L.R. 1003, 1006, 1009; Ross v. Erickson Const. Co. (1916), 89 Wn. 634, 155 P. 153, 156, L.R.A. 1916F, 319, 322; Burns v. Vilardo (1948), 26 N.J. Misc. 277, 60 A.2d 94, 96 [2-5]; Makarenko v. Scott (W. Va., 1949), 55 S.E.2d 88, 97 [10, 11]; Hinkelman v. Wheeling Steel Corp. (1933), 114 W. Va. 269, 171 S.E. 538.
In other jurisdictions the injured employee's right of action against the physician for malpractice has been upheld. Again, the applicable statutory provisions are variously worded. In some instances the physician [916] has been considered a "third person." See cases cited in footnote 2. For other cases advancing different reasons for permitting a recovery, see footnote 3.
Hancock v. Halliday (1943), 65 Idaho 645, 150 P.2d 137, 149, 154 A.L.R. 295, 306; Pawlak v. Hayes (1916), 162 Wis. 503, 156 N.W. 464, L.R.A. 1917A, 392, 393; Huntoon v. Pritchard (1939), 371 Ill. 36, 20 N.E.2d 53, 56 [3, 7, 10]; Idem (1935), 280 Ill. App. 441; Scaton v. United States Rub. Co. (1945), 223 Ind. 404, 61 N.E.2d 177, 181 [6]; Baker v. Wycoff (1938), 95 Utah 199, 79 P.2d 77, 81 [2, 3, 14, 17]; Parchefsky v. Kroll Bros. (1935), 267 N.Y. 410, 196 N.E. 308, 98 A.L.R. 1387, 1389, 1391; Froid v. Knowles (1934), 95 Colo. 223, 36 P.2d 156, 157 [3].
McGough v. McCarthy Imp. Co. (1939), 206 Minn. 1, 287 N.W. 857; Smith v. Coleman (1941), 46 Cal.App.2d 507, 116 P.2d 133, 136 [5-7]; Ruth v. Weatherspoon-Englar Co. (1916), 98 Kan. 179, 157 P. 403, L.R.A. 1916E, 1201; Powell v. Galloway (1929), 229 Ky. 37, 16 S.W.2d 489; Keen v. Allison (1933), 166 Tenn. 218, 60 S.W.2d 158; Benson v. Sioux Falls Medical and Surgical Clinic (1934), 62 S.D. 324, 252 N.W. 864.
In Hanson v. Norton, supra, Norton was employed by Hanson's employer and its insurer to render medical and surgical treatment, and he treated Hanson when he received a compensable injury. Hanson accepted the full compensation awarded him under the Act for his injuries, which included compensation under the Act for the aggravation resulting from Norton's alleged malpractice.
In these circumstances the court held that Norton, the physician, was not a third person under now, § 3699, because "we are of the opinion that in order for a wrongdoer to be a third person against whom an action may be maintained by the injured party, after such injured party has received full compensation under the Compensation Act, such person must be the one who committed, or is responsible for the commission of, the act that resulted in the original injury. Paine v. Wyatt, 217 Iowa 1147, 251 N.W. 78. Under such construction, defendant in the present case, is not a third person under § 3309 [now § 3699, supra], not only because he was not primarily liable under the Act, but because he did not commit the original act which resulted in the original injury." 103 S.W.2d l.c. 5 [3].
The court also considered that payment under the Compensation Act effected an accord and satisfaction; applying the common law rule "that when an injured party has received full satisfaction for his injury, from one wrongdoer, whether the injury was caused by one or more, each of whom may be severally liable, he is barred from further recovery from the other tortfeasors." This is good law as between common law joint tort-feasors; but whether the "compensation payable under the Act" constitutes full accord and satisfaction "at common law" when a third person tort-feasor is liable depends upon the wording of the specific statutory provisions involved.
"The Compensation Act does not take away the employee's common-law right against an offending third person." Reynolds v. Grain Belt Mills Co., 229 Mo. App. 380, 788 S.W.2d 124, 130[3]. Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153, 155[3], points out that while § 3699, supra, subrogates the employer to the rights of the employee against a third person; "yet it is settled that the employee also may sue, independent of the statute, or the two may sue together; and this is true notwithstanding the employee has already claimed and collected compensation under the Act for the same injuries from his employer. Anzer v. Humes-Deal Co., 332 Mo. 432, 58 S.W.2d 962."
See also Smith v. Siedhoff (Mo.), 209 S.W.2d 233, 239 [12]; Gardner v. Stout, 342 Mo. 1206, 119 S.W.2d 790, 792 [3]; General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 445 [2, 3]; McKenzie v. Missouri Stables, Inc., 225 Mo. App. 64, 34 S.W.2d 136, 139 [10, 11].
The employee's rights under the Missouri Compensation Act against his employer embrace compensation for the aggravation of the primary injury through malpractice by a physician selected by the employer, such malpractice constituting a natural consequence of the primary injury. Hughes v. Maryland Cas. Co., 229 Mo. App. [917] 472, 76 S.W.2d 1101, 1103[2] citing cases, and discussion 1105[5]. See Persten v. Chesney (Mo. App.), 212 S.W.2d 469, 475[7]. The Act, under § 3691, supra, affords the exclusive remedy for the compensable aggravation of an injury by a physician so far as the liability of the employer or his insurer is concerned, insurers being made primarily liable under § 3715 of the Act and not being "third persons." Hughes v. Maryland Cas. Co., supra (76 S.W.2d l.c. 1104[3, 4]).
Hanson v. Norton, supra, goes a step farther in holding the common law rights of the employee against a physician for malpractice aggravating a compensable injury to have been abrogated by the Act.
The cases of Staehlin v. Hochdoerfer (Mo.), 235 S.W. 1060, 1062[2, 3], and Parkell v. Fitzporter, 301 Mo. 217, 256 S.W. 239, 243[3, 4], 244, develop the law of Missouri in regard to the liability of a physician for malpractice aggravating an injury.
The facts in Parkell v. Fitzporter are illustrative. Parkell suffered a broken leg when struck by an automobile operated by Fitzporter, a physician. Fitzporter took Parkell to a hospital where he and Dr. Printy, another physician, treated Parkell. Parkell sued Fitzporter for damages on account of the original injury and secured a judgment thereon, which was satisfied. Thereafter Parkell sued Fitzporter and Printy for malpractice.
These cases recognize, where the original injury is the result of a tort, that the original tort-feasor is liable for the original injury and any malpractice of the tort-feasor's physician in treatment aggravating said original injury; that the physician is not liable for the original injury; that the two are joint tort-feasors with respect to the aggravation; and that the two injuries are not so legally connected that the satisfaction of, say, the original injury necessarily bars the suit for malpractice against the physician. In other words, they are to the effect that malpractice on the part of a physician aggravating an original injury is not necessarily such an intervening act as to break the chain of causation between the original injury and the ultimate result, the aggravation being regarded as a probable consequence of the original injury (6 Schneider, Workmen's Compensation, 56, n. 16; 1 Id., 236, § 97, n. 2; 3 Id., 209, § 841; 71 C.J. 641, § 395; 15 Am. Jur. 494, §§ 84-86; 58 Am. Jur. 776, § 279); and that such malpractice is, at the same time, sufficiently independent of the original injury to give rise to a cause of action against the physician tort-feasor. When the malpractice is not an act which flows legitimately as a natural and probable consequence of the original injury, the chain of causation is broken and the malpractice constitutes an independent intervening cause. 15 Am. Jur. 495, § 85, nn. 19, 20; 41 Am. Jur. 252, § 137, nn. 8-9.1; 58 Am. Jur. 776, § 279, n. 8.
A coemployee or fellow servant or a foreman is a "third person" within § 3699, supra. Sylcox v. National Lead Co., 225 Mo. App. 543, 38 S.W.2d 497; Wors v. Tarlton, 234 Mo. App. 1173, 95 S.W.2d 1199, 1207[10]; Gardner v. Stout, 342 Mo. 1206, 119 S.W.2d 790, 792[3-5].
In the Sylcox case, Sylcox, an employee of the corporate defendant, sued his employer and his coemployee Keeney in tort for damages for personal injuries. A plaintiff's judgment against both defendants was reversed as to the corporate defendant because the accident occurred at a place where plaintiff's services for said employer reasonably required him to be and, hence, the accident was within the purview of the Workmen's Compensation Act (38 S.W.2d l.c. 501), while the judgment was affirmed as to the coemployee defendant because he was not subject to the Workmen's Compensation Act, being a "third person" within § 3699, supra. [918] This ruling is in harmony with holdings to the effect that neither the exclusion clause of § 3691, nor the provisions of § 3699, supra, abrogates the employee's common law rights against a "third person"; and holdings that a third person "is one upon whom no liability could be entailed under the Act." McKenzie v. Missouri Stables, Inc., 225 Mo. App. 64, 34 S.W.2d 136, 138[5]; Sylcox v. National Lead Co., 225 Mo. App. 543, 38 S.W.2d 497, 501[6, 9]; Hughes v. Maryland Cas. Co., 229 Mo. App. 472, 76 S.W.2d 1101, 1104[3].
Other holdings to like effect are: Hudson v. Moonier, 94 F.2d 132, 137 [8], reversed and remanded to apply the law of Missouri 304 U.S. 397, 58 S.Ct. 954, 82 L.Ed. 1422; mandate conformed to, 102 F.2d 96; certiorari denied, 307 U.S. 639, 59 S.Ct. 1037, 83 L.Ed. 1520; Behr v. Soth, 170 Minn. 278, 212 N.W. 461, 463 [3]; Rehn v. Bingaman, 151 Neb. 196, 36 N.E.2d 856, 859 [3, 4]; Zimmer v. Casey, 296 Pa. 529, 146 A. 130, 131 [6, 7]; Churchill v. Stephens, 91 N.J.L. 195, 102 A. 657, 658 [2]; Webster v. Stewart, 210 Mich. 13, 177 N.W. 230, 231 [2]; Wallace v. Pacific El. Ry. Co. (Cal.App.), 288 P. 834, 836 [3]; and see 57 C.J.S. 348, § 578; 71 C.J. 1525, §§ 1557, 1565; Annotations, 106 A.L.R. 1059; 88 A.L.R. 692; 67 A.L.R. 276; 19 A.L.R. 793; 58 Am. Jur. 617, § 61; 35 Am. Jur. 954, §§ 525, 526.
We think the term "third person" in § 3699, supra, has its usual meaning. The Act predicates the liability of the employer on the incident of the employment (master and servant) relationship and not on negligence. A third person is one with whom there is no master and servant relationship under the Act. Plaintiff predicates the liability of defendant for malpractice on the fault of a tort-feasor. We perceive no reason for subrogating an employer to his employee's rights against a tort-feasor involving an original injury and denying that subrogation against a tort-feasor, be he physician or other person, aggravating the original injury and adding to the employer's liability through increased compensation for such aggravation under the Act. To hold a third person must be one participating in the original injury is to deprive the employer of his right of subrogation under § 3699 for the increased compensation occasioned by the aggravation of the injury and is not within the letter or the spirit of an Act which casts liability on employers (§ 3691) "irrespective of negligence." Greater reason exists for allowing an employer subrogation for the compensable aggravation than for an original "accident arising out of and in the course of" the employee's employment, as the employer is more likely to be without personal fault in connection with the aggravation. We find no legislative intent to make a distinction between an original injury and an aggravation thereof. Section 3699, supra, recognizes common law rights against third persons and indicates an intention to preserve rather than abrogate such rights. No employer and employee or master and servant relationship existed between the instant plaintiff and defendant. The benefits of the Act accrue to those who share its burdens. Defendant did not share its burdens. He is not entitled to its benefits. Hence, we conclude he was a stranger under the Act, a "third person." We speak of a compensable aggravation of an original compensable injury. Consult cases at footnote 2, supra; 41 Am. Jur. 251, § 136; 58 Am. Jur. 621, § 66; 71 C.J. 1520, §§ 1555, 1557, 1602; Annotations, 154 A.L.R. 315; 139 A.L.R. 1010; 82 A.L.R. 932.
We agree with what is said in Hanson v. Norton, 340 Mo. 1012, 103 S.W.2d 1, 6[4], regarding receipt of full satisfaction from one of several joint tort-feasors barring further recovery from cotort-feasors. However, an employer's liability under the Act is predicated on the relationship of employer and employee and does not rest in tort. § 3691, supra. His position is superior to that of a third person tort-feasor against whom he is subrogated to the rights of his injured employee. The provisions of the Act disclose that the compensation payable thereunder does not constitute satisfaction for all damages sustained by an injured employee. For instance: §§ 3703-3706 among others, of the Act. It has been said that the Act does not seek to provide damages for pain, suffering, or physical ailment. Dauster v. Star Mfg. Co. (Mo. App.), 145 S.W.2d 499, 502[1]; Gayhart v. Monarch Wrecking Co., 226 Mo. App. 1118, 49 S.W.2d 265, 266.
Under the explicit wording of § 3699, supra, "* * * the recovery by such employer shall not be limited to the amount payable as compensation to such employee * * *, but such employer may recover any amount which such employee * * * would have been entitled to recover. Any recovery by the employer against such third [919] person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee * * *." It is inescapable that full compensation under the Act does not necessarily constitute payment for all damages sustained. Hughes v. Maryland Cas. Co., 229 Mo. App. 472, 76 S.W.2d 1101, 1104[3, 4], is not the instant case as it involved the liability of the employer's insurer for the malpractice of its physician. The employer's insurer is made primarily liable by § 3715 of the Act and is not a stranger or a "third person" under the Act.
Under the Missouri Act and the decisions construing it there is no double recovery, an evil to be avoided, because whoever, the employer or the employee, recovers against a third person tort-feasor holds so much of such recovery as in truth and in fact belongs to the other as an express trustee — the employee to see that the employer's right of subrogation is protected, and the employer to see that the employee receives any surplus after his indemnification. McKenzie v. Missouri Stables, Inc., 225 Mo. App. 64, 34 S.W.2d 136, 139[7]; Reynolds v. Grain Belt Mills Co., 229 Mo. App. 380, 78 S.W.2d 124. 130[2]; General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 446[5].
The judgment is reversed and the cause is remanded.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the Court en Banc. All concur.