* * * That the plaintiff did proceed against the defendant under the act cannot be questioned. Brabon v. Gladwin Light Power Co., 201 Mich. 697; Wood v. Vroman, 215 Mich. 449; Smith v. Port Huron Gas Electric Co., 217 Mich. 519. His counsel invoke the doctrine that a choice between inconsistent remedies, when taken in ignorance of the fact that one has a double remedy, is not binding as an election. 20 C. J. p. 35; 9 R. C. L. p. 962.
And it is the province of the jury to draw the legitimate inferences from the established facts in this character of cases. Marx v. Schultz, 207 Mich. 655; Wood v. Vroman, 215 Mich. 449. The Wood Case was a malpractice case, and it was said by Mr. Justice SHARPE, speaking for the court: "The plaintiff was not required to prove to an absolute certainty that the infection was caused by the introduction of the germs in the pus. He was required to establish facts from which such an inference might fairly have been drawn by the jury."
The question asked was but another way of inquiring whether the treatment was proper. It was in line with the requirement stated in Wood v. Vroman, 215 Mich. 449, 465, and, in our opinion, was a proper one to submit to the doctor. The judgment is reversed, with costs to appellant, and a new trial ordered.
St. Louis S. F. R. Co. v. Barker, 210 Fed. 902. See, also, 4 C. J. §§ 3075, 3265; 2 R. C. L. § 191, p. 227; Hall v. Murdock, 119 Mich. 389; Ruttle v. What Cheer Mining Co., 161 Mich. 150; Wood v. Vroman, 226 Mich. 625; Terrill v. Traction Co., 214 Mich. 478; State National Bank of Albuquerque v. Wernicke, 202 Mich. 8. Applying this rule to the case at bar, it must be held that our decision on the first review, that the verdict was not against the weight of the evidence, made the law of the case and was binding on the trial court in the second trial unless the record is materially different.
77 N.W. 813; Holton v. Burton (Wis.) 222 N.W. 225; McGuire v. Rix (Neb.) 225 N.W. 121; De Bruine v. Voskuil (Wis.) 169 N.W. 288; Wood v. Vroman (Mich.) 184 N.W. 520; Dunn v. Beck (Mont.) 260 P. 1047.
Oleszek v. Ford Motor Co., 217 Mich. 318 . And what is more important, the rights and duties of the respective parties under the compensation act arise out of and are incident to the contract of employment. Crane v. Leonard, Crossette Riley, 214 Mich. 218 (18 A.L.R. 285, 20 N.C. C. A. 621); Wood v. Vroman, 215 Mich. 449. In other words, they are contractual in nature, and plaintiff is here asserting her right for double compensation because of her contract of employment with defendant.
We cite a few illustrative cases. McArthur v. Flint Oil Co., Inc., 50 R. I. 226, 146 A. 484; Foster v. Congress Square Hotel Co., 128 Me. 50, 145 A. 400; Book v. Henderson, 176 Ky. 785, 197 S.W. 449; Black v. Chicago G. W. R. Co., 187 Iowa 904, 174 N.W. 774; Jacowicz v. Delaware, L. W. R. Co., 87 N.J.L. 273, 92 A. 946; Podgorski v. Kerwin, 144 Minn. 313, 175 N.W. 694; O'Brien v. Chicago City Ry. Co., 305 Ill. 244, 137 N.E. 214; Moeser v. Shunk, 116 Kan. 247, 226 P. 784; Wood v. Vroman, 215 Mich. 449, 184 N.W. 520. Liability under our Workmen's Compensation Act rests solely on contract.
However, the court found that there was no malpractice; that the collection from the doctor was a gratuity, inasmuch as he had not been responsible; that the fact that a declaration alleging malpractice had been filed in the case against the doctor was not conclusive, and that the amount allowed for compensation was not affected at all by the unwarranted settlement for malpractice. Likewise, in Wood v. Vroman, 215 Mich. 449, recovery was based upon malpractice in treating a condition which did not arise out of the worker's employment. The loss of the eye did not result from treatment of the injury received in the course of employment, but from the subsequent removal of a small ulcer discovered by defendant during his examination.
In the quotation above, the attention of the legislature was called to the injustice to the employer in the construction placed upon this section. This holding was referred to in Wood v. Vroman, 215 Mich. 449, 464, in the hope of the writer of that opinion that it might receive legislative consideration. In that case it was also said (p. 465):
Nor is the treatment another physician would have used under the circumstances the test. Wood v. Vroman, 515 Mich. 449, 465. The rule is firmly established that defendant was bound to use the degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities.