Chamberlain v. Bowersock Mills & Power Co.
| Decision Date | 09 December 1939 |
| Docket Number | 34537. |
| Parties | CHAMBERLAIN v. BOWERSOCK MILLS & POWER CO. |
| Court | Kansas Supreme Court |
R. E Melvin and Geo. K. Melvin, both of Lawrence, for appellant.
J. J Schenck and C. P. Schenck, both of Topeka, for appellee and cross-appellant.
This was an action under the workmen's compensation act Gen.St.1935, 44-501 et seq. The compensation commissioner found for the plaintiff. On appeal the district court found in part for the claimant and in part for the respondent. The case is here on appeal by the respondent and cross appeal by the claimant.
Chamberlain the claimant, was employed by the Bowersock Mills and Power Company, a corporation located at Lawrence, and went to work on Thursday, June 2, 1938. On June 3, while he and other employees were moving some machinery, he suffered an injury to the third finger of his hand. The skin on the finger was broken and a cut made about an inch long. He continued to work that day and the next day, June 4, and then returned to his home in Topeka. On Sunday he consulted Dr. C. K. Schaffer of Topeka, and Dr. Schaffer found evidences of infection. Chamberlain was taken to a Topeka hospital where he received treatment. The infection grew worse, abscesses developed and several operations, one of them under a general anaesthetic were performed. Claim for compensation was duly made. The district court found that the medical treatments were authorized by the respondent, that notice of the claim for compensation was made within the ninety days provided by the statute, Gen.St.1935, 44-520a, and that the claimant's injury consisted of an injury to the third finger of the right hand resulting in the loss of the use of the finger. The court found that the claimant was entitled to twenty weeks' compensation for the total loss of the use of the finger, the same to be treated as a scheduled injury, and was further entitled to two weeks' additional compensation for the healing period, making a total of twenty-two weeks, or a total of $396. It was agreed that if he was entitled to compensation it should be fixed at the rate of $18 a week. The court also allowed the hospital and medical bills.
The respondent company makes three principal contentions:
(1) That the medical services were not authorized by the company, because Goodrich, the man who is said to have authorized them, had no authority to do so. It is admitted that the furnishing of medical and hospital attention constitutes payment of compensation, and that if the company did authorize such services a notice of the claim was filed within time. If the company did not authorize them, then the notice, not having been filed within ninety days after the injury, was filed too late.
(2) That the court's finding that claimant suffered a total loss of the use of the third finger of his right hand as a scheduled injury was not supported by evidence and that the court should have found from the testimony that the claimant was entitled to ten percent of the loss of the use of the third, fourth and fifth fingers of the right hand.
(3) That if the evidence failed to show a scheduled injury, then the court should have allowed compensation for total temporary disability only from June 6 to August 6, and should have disallowed all other claims except medical.
The claimant makes two principal contentions: (1) That he was also entitled to compensation for loss of the use of his fourth finger; and (2) that the court erred in holding that the award paid on the loss of the use of the third finger, being a scheduled injury under the statute, prevented any allowance for temporary total disability and that upon the record he was entitled to such allowance.
We shall consider these contentions in their order.
(1) Were the representations and acts of Goodrich authorizing medical treatment and hospital care binding upon the company? The company operates the mill where the claimant was employed and also operates a grain storage elevator, a bakery and other business concerns. Goodrich was in charge of the mill operations and sales. Respondent refers to him as superintendent. He had power to employ helpers, and it is admitted that he did hire the plaintiff though respondent contends it was done after consultation with Jackmans who was vice president of the company. Chamberlain testified that he did not see Goodrich the day his hand was injured as Goodrich was out of town, that he saw Goodrich on Saturday and Goodrich mentioned the accident. He testified that he went back to Lawrence and saw Goodrich again on Monday and told him that he was living at Topeka and wanted to be treated by his family doctor and thus save the expense of going back and forth to Lawrence and asked him if he could keep the Topeka doctor, and Goodrich said it would be all right. He testified that when the injury took place no one at the mill told him to see the company doctor but some one made the remark that he thought he ought to see a doctor, but he didn't think at the time it was necessary. He testified that when he was in Dr. Schaffer's office in Topeka Dr. Schaffer called Goodrich over the telephone and told Goodrich that the hand wasn't getting along right and that he should be taken to the hospital. Dr. Schaffer testified that he saw Chamberlain first on June 5 at his office and every day thereafter until the 9th, that when he found that the infection was spreading down into the wrist he called Goodrich over the phone and asked permission to take him to the hospital and that he told him to go ahead and take care of him as he wanted Chamberlain to have the best of care. There is no contention that Goodrich told Chamberlain or Dr. Schaffer that he did not have authority to authorize medical or hospital care or that he or anyone at the mill referred Chamberlain or Dr. Schaffer to anyone who would have such authority. The court found, as a matter of fact, that the company did authorize the medical care and the hospital treatment, and we think there is ample evidence to support that finding.
The appellant cites several decisions of this court and relies principally upon St. Mary's Academy v. Railways Ice Co., 138 Kan. 340, 26 P.2d 278. In that case the workman was injured at night while working at the ice plant and was ordered sent to the hospital by the night engineer who was in charge of the plant at night. It was held that the hospital had no right to rely upon the act of the night engineer as binding upon the company to pay the hospital bill. There is nothing, however, in the record to show that the night engineer had any authority to hire employees or any authority other than having charge of the plant at night. It is not comparable to the instant case where Goodrich was in charge of mill operations and sales and was clothed with the power to hire employees. The fact that he consulted or advised with some superior officer in the company does not change the situation. St. Mary's Academy v. Railways Ice Co., supra, cited Atlantic & P. R. Co. v. Reisner, 18 Kan. 458, in support of the proposition that "such an employee has no authority to bind his employer to pay medical or hospital bills." [138 Kan. 340, 26 P.2d 279.] The case cited held that a station agent of a railroad company was without authority to employ a hotel keeper to furnish board and lodging to a disabled brakeman. No contention was made that a station agent had authority to hire the brakeman or that the brakeman was in any way under his supervision.
Respondent cites Townsend v. Railway Co., 88 Kan. 260, 128 P. 389, which held that an act was within the scope of an agent's authority when a reasonably prudent person having knowledge of the nature and usages of the business would be justified in supposing that he is authorized to perform it. Under this principle respondent contends that no reasonably prudent person who had worked at the mill for only one day would be justified in assuming that Goodrich had authority to bind the mill in regard to medical treatment. We cannot agree with that contention. Under the facts heretofore recited we think that Chamberlain was amply justified in assuming that when Goodrich authorized the treatment he was acting within his authority.
(2) Was there evidence sufficient to support an award based on total loss of the use of the third finger of the right hand?
On this question respondent's argument is based on the report and testimony of Dr. Schaffer with reference to the injury to the fingers of the right hand. On September 8, Dr. Schaffer made a report from which the following is taken:
On cross examination he testified as follows:
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