127 Misc. 848 | New York County Courts | 1926
Sometime in January, 1925, one O’Connor, an employee of the defendant, sustained a serious injury while.engaged in working for the defendant. Mr. Schmidt, the president of the defendant, telephoned to Dr. L. W. Locke, the company’s regular physician, informing him that one of their employees was hurt and asking him to come at once to a certain hospital. Dr. Locke complied with the request and met Schmidt and the injured man there, and was directed by Schmidt to “ do everything possible to do for him.” Dr. Locke took care of the patient, who was in a serious condition, and upon learning that among his injuries there was a double fracture of the• lower jaw, he called in the plaintiff who reduced the fractures, repaired the damage as far as possible, and has a claim for $250 for his services in so doing.
It transpires that the defendant carried compensation insurance and it is doubtless a fact that both Mr. Schmidt and Dr. Locke, and possibly the plaintiff, all supposed in the earlier stages of this case that it was a “ compensation case.” It seems that Dr. Locke had for a number of years been taking care of employees of the defendant who had been injured in the course of their employment and his bills for so doing were usually, but not always, paid by the “ insurance carrier.” It was supposed that this was a “ compensation case,” and plaintiff was told by Dr. Locke to send his bill to a certain insurance company and did so. However, it transpired that O’Connor’s injury was due to an epileptic seizure. This seems to be admitted by everyone connected with this case; and it seems also to be admitted that under such circumstances the insurance company is not liable; and it is understood to have declined to pay the bill rendered by plaintiff. The defendant also refusing to pay the bill, this action has been brought, and plaintiff has recovered in the court below and defendant has appealed to this court where the case has been retried.
Defendant offered no evidence upon the trial; and, although the stipulation submitting the case to me was signed about three months ago, has not filed any brief. Just what the defendant’s claims in the premises are, I am not advised. Probably it considers itself fortified behind the cases of Crane v. Baudowine (55 N. Y. 256) and McGuire v. Hughes (207 id. 516). The principle established by those cases has been extended to the case of a
I do not think the doctrine of “ mutual mistake ” can be successfully invoked by the defendant. • It is said that “ mutual mistake as to material facts will void the agreement.” (9 Cye. 397.) The principle, I believe, relates to executory contracts only. “ The principle which underlies all the reported decisions in this class of cases is, that when the legal rights of the parties have been changed by mistake, equity restores them to their former condition, when it can be done without interfering with any new rights acquired on the faith and strength of the altered condition of the legal rights, and without doing injustice to other parties.” (Lumber Exchange Bank v. Miller, 18 Misc. 127-132.)
Nor do I consider that there can be any question of the authority of Mr. Schmidt to act for his company, although there is no particular proof on that subject. “ The rule is well settled that it will ordinarily be presumed that a president of a corporation has the power to make contracts pertaining to the business of the corporation and coming with the apparent scope of his authority.” (Spitzer v. Born, Inc., 194 App. Div. 739.) I think the law in the case is clearly stated in the case of Weinsberg v. St. Louis Cordage Co. (135 Mo. App. 553; 116 S. W. 461) where the court said: “ When a catastrophe occurs in its factory, the corporation ought not to be expected to assemble its board of directors in order to exercise the implied power referred to. There is certainly an emergency power, incident to the office of president of such an institution.”
Dr. Capron, the plaintiff, doubtless rendered a bill for the services for which this action is brought to the insurance carrier. This was done upon the direction of Dr. Locke, and upon the assumption that O’Connor’s was a “ compensation case ” and that
Neither does section 13 of the Workmen’s Compensation Law prevent a physician employed by an insurance carrier from maintaining an action to recover for his services. It is held that the provision of that section “ has reference only to the fees and charges incurred by the working man, his medical treatment, where the employer refuses or neglects to provide such treatment.” (Feldstein v. Buick Motor Co., 115 Misc. 170, 174; Weinreb v. H. B. & L. R., Inc., 204 App. Div. 293.)
For all of the reasons which I have tried to make clear herein-before, I feel compelled to hold" that the defendant is, under the circumstances, responsible to the plaintiff for his bill; and will direct a recovery for the amount claimed, with costs.
Findings and judgment may be prepared accordingly.