Hodgen v. Bitely

• Decision Date: 29 July 1927
• Docket Number: No. 31.,31.
• Citation: 239 Mich. 516,215 N.W. 37
• Parties: HODGEN v. BITELY et al.
• Court: Michigan Supreme Court

239 Mich. 516

215 N.W. 37

HODGEN

v.BITELY et al.

No. 31.

Supreme Court of Michigan.

July 29, 1927.

Error to Circuit Court, Muskegon County; John Vanderwerp, Judge.

Action by John T. Hodgen against Earl Bitely and another. To review the judgment, defendant Higman Package Company and plaintiff bring error. Affirmed.

Argued before SHARPE, C. J., and BIRD, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.Louis H. Osterhous, of Grand Haven, for appellant Higman Package company.

Wm. K. Clute, of Grand Rapids, for appellant Hodgen.

Dunham & Cholette, of Grand Rapids, for appellee Bitely.

SHARPE, C. J.

The trial court, before whom the cause was tried without a jury, filed the following opinion:

‘Earl Bitely was injured on February 19, 1924, while in the employ of the Higman Package Company. The latter company was insured in pursuance of the Workmen's Compensation Law (Pub. Acts [Ex. Sess.] 1912, No. 10, as amended), and Bitely was treated by Dr. John T. Hodgen, the plaintiff, and a leg amputated by him 9 days after the accident. The plaintiff was paid for his services rendered to Bitely at that time by the Higman Package Company through its insurer. In October, 1924, Bitely came to plaintiff again for treatment. Plaintiff sent him back to his employer for authority to the plaintiff to treat him further and Bitely returned with the following document:

“Date, October 6, 1924. Dr. J. Hodgen, Grand Rapids, Mich. Please render to Mr. Earl Bitely the necessary medical services as provided for in the Workmen's Compensation Act, for injury received on February 19, 1924, while in our employ. Nature of injury, amputation of leg. Name of employer, Higman Package Company, by J. Fisher.'

‘Thereupon the plaintiff again treated Bitely and performed another operation upon him, placing him in a hospital in Grand Rapids. This suit is brought by the plaintiff for professional services from October 10, 1924, to December 24, 1924, $447, also, for the account of the Blodgett Hospital for care and services in connection with this latter treatment, $385, the second account having been assigned to the plaintiff, making a total of plaintiff's claim of $832.

‘There are three questions to be decided in this case as follows:

‘(1) Is Earl Bitely liable for this account?

‘(2) Was J. Fisher, the person who signed the order above mentioned, authorized to sign the same?

‘(3) Is the defendant Higman Package Company liable for this service?

‘Defendant claims that the written authority is limited to the provisions of the Workmen's Compensation Act.

I. ‘I am of the opinion that Earl Bitely is not liable for this account. Plaintiff declined to commence the treatment of Bitely in 1924 and sent him back to the Higman Package Company for authority to do so. While he testifies that he would not finally have declined to perform the services for Bitely, he did feel that somebody should pay him for the services if authority therefor could be obtained, and that that was the reason he sent him back for such authority. Bitely obtained the written authority from the employer and brought it back to the plaintiff, and thereupon the services commenced. It is evident, therefore, that plaintiff did not in any way rely upon Bitely hiring him, nor upon any obligation on his part to pay him.

II. ‘I am of the opinion that J. Fisher, who signed the paper referred to, was authorized to sign the same and bind the Higman Package Company thereby. He testifies that among his duties as foreman for the defendant company, being in charge of the workmen, was that of taking charge of any matters pertaining to injuries to the men. He had blanks for reporting such injuries and had repeatedly issued them upon forms furnished to him; that he gave this order so Bitely could receive further treatment; and that he thought the treatment would be under...