11 S.W.2d 705 | Ky. Ct. App. | 1928
Reversing.
The appellant is a physician and surgeon. He alleged, in his petition, that about the 1st day of June, 1920, he entered into an oral contract with appellee whereby he agreed to render such medical and surgical aid, treatment, *656 and services as might be required by the terms of the Workmen's Compensation Act (Ky. St. sec. 4880 et seq.) to such of appellee's employees as might be injured in and about its mines located near Jeff, in Perry county, Kentucky. He alleged that the contract was to remain in force for an indefinite period; that appellee was indebted to him in the sum of $2,739 for medical and surgical services rendered by him at its special instance and request and in accordance with the terms of the contract and while the same was in force. He set out, in his petition, a list of employees to whom he had rendered such services, the number of his treatments, the number of operations, and the amount that he was entitled to recover in each case. He alleged that by the terms of the contract he was to be paid a reasonable amount for the services so rendered, and that the charges made by him as set out in his petition were reasonable. He filed an amended petition, which served only to make his allegations more definite and certain. A general demurrer was interposed by appellee to the petition, and was sustained by the court; but, after the amended petition had been filed, the court overruled the demurrer. Whereupon appellee moved the court to require the appellant to make his allegations more definite and certain, in that he be required to set the date that the contract was entered into, the date that he commenced work, and the date that he ceased work. In response to the motion appellant filed an amended petition, in which he alleged that the contract was made about the middle of May, 1920, that he began work June 1, 1920, and that his employment ceased July 1, 1923.
The appellee filed an answer in several paragraphs, in which it attempted to set up a number of defenses. A demurrer was interposed by appellant to some of the paragraphs of the answer, and, upon consideration, the court carried the demurrer back to the petition as amended and sustained it. We have before us, therefore, the sole question as to whether the petition as amended states a cause of action.
The appellee insists that the appellant must seek his remedy, if any he has, before the Workmen's Compensation Board, and for that reason the court had no jurisdiction. It is true that section 4883, Ky. Stats., vests the Workmen's Compensation Board with authority to allow compensation to the injured employee for medical, surgical *657 and hospital treatment, including nursing and medical and surgical supplies and appliances. The compensation so allowed shall be such as may be reasonably required at the time of the injury and thereafter during disability, but shall not exceed 90 days in its duration, nor a total expense to the employer of more than $100, unless the Workmen's Compensation Board shall direct an extension of the period of treatment and an increase of the limit of expenses. But the increase in compensation to cover such expenses shall not exceed $200. It is also true that sections 4884, 4885, and 4886, Ky. Stats., further confers upon the board authority to regulate such fees and charges. By the specific provisions of section 4886, Ky. Stats., the board is given authority to regulate such fees and charges. It seems to us, however, that there is nothing in these sections which would prevent an employer from making such a contract as appellant alleges was made with him. No question of the reasonableness of the fees and charges is involved here. If the Workmen's Compensation Board, in passing upon the claims of the injured employees, should have fixed what was a reasonable charge for the services rendered, probably appellee could rely upon the amount so fixed, if there should be a disagreement between it and appellant. The contract with appellant was not to pay a fixed sum, but only a reasonable sum, for the services. There is nothing in the law which would prevent the employer from rendering additional services to its employees over and above that prescribed by the statutes. We do not know what the facts may disclose, as we have before us only the allegations of the petition that appellant was employed to render medical and surgical attention to such employees as might be entitled to compensation, to be allowed through the Workmen's Compensation Board. There was nothing in the contract, according to the allegations of the petition, relating to sums allowed by the Workmen's Compensation Board. It seems to us, therefore, that the contract, if made, was one not in contravention of public policy or the statutes.
Appellee contends that the petition, on its face, shows that the contract is within the statute of frauds, as defined by subsection 7 of section 470 of the Kentucky Statutes. It relies on the case of Mullikin v. Miles,
Appellee argues that the case is controlled by the opinion in the case of Cumberland Manchester Railroad Co. v. Posey,
"In such a case, however, the plaintiff may, in so far as he has performed, recover on a quantum meruit for the advantages or benefits received by the defendant, if the latter refuses to perform his part of the contract. Where the contract has been *659 fully performed by the plaintiff, as in case of a contract for services for a period longer than a year, and nothing remains to be done by the defendant but to pay the amount of the agreed compensation, it has been held that the contract may be enforced against the defendant according to its terms."
Discussing such contracts, 27 C. J. p. 187, thus states the rule:
"A contract of hiring which fixes no definite time for its performance or termination is not within the statute."
In the case of Roberts v. Tennell, 3 T. B. Mon. (19 Ky.) 247, this court held that, although a contract might be within the statute of frauds, where an action was brought, not upon the express promise or contract, but on such as may be implied by law, for services actually performed, the suit was maintainable.
In the case of Myers v. Korb, 50 S.W. 1108, 21 Ky. Law Rep. 163, this court announced that it had been uniformly held that the statute does not apply to contracts that may be performed within a year. That was a case where a boy had been employed to learn the plumbing business. The court held that the contract was probably not within the statute of frauds, yet held to the doctrine that the boy was entitled to recover for services actually rendered, for which there had been a promise to pay, although the contract might be within the statute.
Ordinarily the rule is that, where a contract may be performed within a year, or where a contract for personal services may be terminated by either party within a year, it is not within the statute of frauds. This question is fully discussed in the case of Dickey v. Dickenson in an opinion written by Judge Hazelrigg,
In the case of Dysart v. Dawkins Log Mill Co.,
Here we have a case of an indefinite, continuing contract, where the services, if the allegations in the petition be true, were actually performed before the contract was terminated by the will of either party. A person who has performed services under such a contract, for which he has not been paid, may maintain an action for the services in accordance with the terms of the contract.
Judgment is reversed, and cause remanded, with directions to overrule the demurrer to the petition.