Having received personal injuries resulting in disability during the course of his employment, appellant instituted proper proceedings and was allowed compensation and medical treatment under the provisions of the Work-' men’s Compensation and Safety Act (Stats. 1917, p. 831). Thereafter he filed an action against his employers and the hospital and physicians to whom he had been referred for medical and surgical treatment by the employers, praying damages for alleged permanent injuries subsequently incurred as a result of malpractice. Pending trial of the civil action, appellant was allowed additional compensation in consequence of the permanent injuries, upon further hearing before the Industrial ' Accident Commission. When said action was called for trial demurrers to the complaint and objections to the introduction of evidence were interposed, upon the ground that a cause of action was not stated. The defendants’ objections were sustained, and the demurrers were sustained without leave to amend the complaint. The only parties defendant upon this appeal by the plaintiff are the hospital and the physicians, and the sole question presented is as to the right of the employee to maintain an action against them for malpractice after allowance of compensatory relief from the employers.

This question has not to our knowledge been determined in California, and the cases in other jurisdictions wherein it has been given especial consideration are conspicuously few. Those from which the parties to the instant appeal seek to deduce their respective theories of the rule are admittedly not precisely in point. Nor are we convinced that a failure of either party to reconcile rulings in such instances with the pending cause is due wholly or even approximately, as is argued, to differences in the various legislative provisions. A tme comprehension of the purposes and intentions of such legislation precludes a judicial expansion of its terms to embrace more than allowances properly chargeable to the business, for defraying expenses necessitated only by injuries arising in the course of and incident to the employment, and from the relationship of employer and employee. A brief review of the cited eases readily reveals their distinction from "existing conditions and principles of law presented by the controversy before us. Fields v. Mankato Elec. Traction Co., 116 Minn, 218 [ 133 N. W. 577 ], and Goss v. Goss, 102 Minn. 346 [ 113 N. W. 690 ], quoted therein, were actions for damages alleged to have pro.ximately resulted from negligent conduct of the defendants and subsequent inattention of the latters ’ medical agents. In each case the rule obtaining in Minnesota was stated as follows: “Where one person is injured by the wrong or negligence of another, and he himself is not negligent in the selection of a medical attendant, the wrongdoer is liable for all the proximate results of his own act, although the consequences of the injury would have been less serious than they proved to be if the attendant had exercised proper professional skill and care.” In neither instance was a compensation act under consideration, nor was there room for discussion of the liability of a physician in the event of previous limited compensatory relief under the provisions of such an act. Three decisions from Kansas and Wisconsin are urged by respondents as analogous. (Ho oyman v. Reeve, 168 Wis. 420 [ 170 N. W. 282 ] ; Retelle v. Sullivan, 191 Wis. 576 [50 A. L. R. 1106, 211 N. W. 756 ]; Bidnick v. Armour & Co., 113 Kan. 277 [ 214 Pac. 808 ].) In the Wisconsin cases the plaintiffs released their employers and the physicians from all claims, for a consideration, and the court remarked that “to permit plaintiffs to recover in these actions would enable them to recover damages twice for the same injuries”. (Retelle v. Sullivan, supra.) In Bidnick v. Armour & Co., supra, it was expressly observed that no element of recovery could be attributed to improper treatment or malpractice. In Lincoln Park C. & B. Co. v. Industrial Com., 317 Ill. 302 [ 148 N. E. 79 , 80], and kindred cases cited, additional remunera tion in the nature of damages as for a tort, independent of the compensatory liability of the employer, as such, was not in issue. It there appeared that the applicant suffered burns from an X-ray examination after allowance and acceptance of an award, for which he was entitled to additional compensation, although the burns “did not aggravate the original injury or cause the recurrence or increase of the disability directly caused by that injury’’. Respondents rely with confidence on the following language of the Supreme Court of Illinois, which we think in view of what remains for later consideration confirms the result' at which we arrive in the instant case.. It was said that “if there had been no injury there would have been no examination, and if there had been no examination there would have been no burn. The burn resulted in the examination which the law authorized defendant in error to require to 'be made to ascertain whether plaintiff in error was entitled to further compensation for the injury of February, 1921. In undergoing the examination plaintiff in error received the injury for which he asks compensation.” (Italics supplied.) But that decision expressly recognized the conceded fact “that the employer is not liable, under the Workmen’s Compensation Act, for injury resulting from malpractice of a physician. They admit that it is a different question from the one here involved, but say there is some analogy between the two questions. ’ ’ It would seem unnecessary to do more here than say of numerous other authorities cited that while kindred questions presented therein prompted expressions capable of carrying interpretation, none of them held that an apportionment of wages or an allowance based upon a wage scale as compensation as maintenance and in payment of proper professional services, would create a bar to an independent action found upon a sufficient showing of malpractice. And as heretofore stated, we do not so construe the intent of the statute in this state. By section 21, article XX, of the Constitution it is provided, in part: “The legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workmen’s compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any and all persons to compensate any and all of their workmen' for injury or dis ability, and their dependents for death incurred or sustained by the said workmen in the course of their employment, irrespective of the fault of either party.” (Our italics.)

Applying this provision in Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319 [ 153 Pac. 24, 26 ], our Supreme Court said:

Viita v. Fleming, 132 Minn. 128 [Ann. Cas. 1917E, 678, L. R A. 1916D, 644, 155 N. W. 1077, 1078 ], is strikingly similar to the instant case. An injured employee was sent to a hospital by his employer for treatment by physicians with whom the employer had an arrangement for treatment of employees in such cases. It was alleged that unskilful. or negligent treatment and appliances administered resulted in permanent injury, which otherwise would not have occurred. The employer submitted to the court for approval a proposed settlement reciting that “the employer shall be and hereby is released from all claims on account of said injury, under said act or otherwise”. In an action against the physicians for damages it was contended by them that the cause of action had been included in and was barred by the settlement of their principals with the employee. The opinion proceeds:

To like effect is Pawlak v. Hayes, 162 Wis. 503 [L. R. A. 1917A, 392, 156. N. W. 464]. Further comment by us, in face of the obvious result, and in the absence of contrary authority, becomes unnecessary.

The judgment is reversed.

Works, P. J., and Thompson (Ira F.), J., concurred.•

A petition for a rehearing of this cause was denied by the District Court of Appeal on March 13, 1931, and a petition by respondents to have the canse heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 10, 1931.