Holt v. Spencer Lumber Co.

• Decision Date: 01 November 1948
• Docket Number: 7433
• Citation: 199 P.2d 268,68 Idaho 478
• Parties: HOLT v. SPENCER LUMBER CO. et al
• Court: Idaho Supreme Court

199 P.2d 268

68 Idaho 478

HOLT v. SPENCER LUMBER CO. et al

No. 7433

Supreme Court of Idaho

November 1, 1948

Appeal from Industrial Accident Board.

Order modified as to interest and as modified affirmed.

Robert E. Smylie, Atty. Gen. and Glenn A. Coughlan, Asst. Atty Gen., of Boise, for appellants.

The Workmen's Compensation Act does not apply to members of the employers' family dwelling in his house. Sec. 43-904 I.C.A. am. 39, C. 157, Sec. 1, p. 283.

Whenever an appeal is taken from a decision of the board, interest shall only be payable from the date of said decision. Sec 43-1412, I.C.A., am. 1945, C. 119, Sec. 1; State Insurance Fund v. Hunt, 52 Idaho 639, 17 P.2d 354.

Where there is a valid hospital contract approved by the Industrial Accident Board, the surety is relieved from further liability for medical care and attention to the employee. Secs 43-1005, 43-1108, 43-1109, I.C.A.; Flock v. J. C. Palumbo Fruit Co., 63 Idaho 220, 118 P.2d 707.

Henry S. Martin, of Idaho Falls, for appellant Spencer Lumber Co.

E. A. Owen, of Idaho Falls, for John W. Holt.

W. Lloyd Adams, of Rexburg, for respondents, W. L. Sutherland, M.D., and National Surety Corporation.

E. B. Smith, of Boise, for respondent Idaho Compensation Co.

An existing hospital contract approved by the Industrial Accident Board relieves the surety from liability for medical benefits; such becomes the responsibility of the contract physician by reason of the hospital contract. Flock v. J. C. Palumbo Fruit Co., 63 Idaho 220, 118 P.2d 707; Epperson v. Texas-Owyhee Mining & Development Co., 63 Idaho 252, 118 P.2d 745; I.C.A. secs. 43-1005, 43-1108, 43-1109.

No policy of insurance or guaranty contract or surety bond issued against compensation liability shall be cancelled except by strict compliance with requirements of the Workmen's Compensation Law relating to the giving, serving and filing of notice of cancellation. I.C.A. 43-1608; Hauter v. Coeur d'Alene Antimony Mining Co., 39 Idaho 621, 228 P. 259; State ex rel. Wright v. Smith, 60 Idaho 316, 91 P.2d 389; Cowles v. State Ins. Fund, 67 Idaho 165, 173 P.2d 722.

Givens, Chief Justice. Holden and Hyatt, JJ., and Glennon and Baker, Dist. JJ., concur.

OPINION

Givens, Chief Justice.

Appellant Lumber Company was a partnership consisting of S. E. Holt, and S. E. Holt, Jr., father and son, purchasers in 1946 of the enterprise from certain predecessor owners operating a saw mill at Spencer, who had carried workmen's compensation with the State Insurance Fund. Said policy was not assigned, but the partnership paid premiums to and which were accepted by, the Fund subsequent to the above date.

Likewise, the predecessors had a purported hospital contract with Dr. Sutherland of Rexburg, the latest hospital bond thereunder filed October 1946, by the predecessors. The contract and bond, if effective, were so May 29, 1947. The policy with the State Fund was ex-medical and the premium lower because of the hospital contract.

The present Company gave Mr. Harn of Dubois, representing Idaho Compensation Company, respondent, an application for insurance in that concern dated May 19, 1947, containing this recitation: "Expiration date of present policy. Notice has been sent State Insurance Fund. And your policy is to be effective as of the date of this application."

On this application, covering bond was issued by the Idaho Compensation Company June 20, 1947, reciting that the Company became obligated for workmen's compensation from and after 12:01 o'clock a. m. standard time June 20, 1947.

The Lumber Company continued to pay premiums to the State Insurance Fund until June 20, 1947, cancellation of the State Insurance Fund policy being issued May 22, 1947, to be effective at 12:01 a. m. June 20, 1947 -- the deferred date being because of the requisite thirty days notice, Section 43-1720 I.C.A., the notice for cancellation having been given by Mr. Harn for the Lumber Company to the State Fund about May 17, 1947.

Mr. Harn's contract of agency with the Idaho Compensation Company was not produced and the evidence was somewhat conflicting and indefinite as to his initial authority to bind the Company, and there was positive evidence the application had to be approved at its home office before the coverage would become effective. The Idaho Compensation Company contends it likewise had to be on file with the Industrial Accident Board, Section 43-1601 I.C.A., but it was not so filed until June 18, 1947.

May 29, 1947, claimant, a son of the elder Holt and brother of S. E. Holt, Jr., was seriously injured in the mill. S. E. Holt, Jr., immediately took claimant to a hospital and physician in Idaho Falls, where he was treated and ultimately released as surgically healed, though with a permanent, determined disability. Dr. Sutherland was never notified of the accident or called upon by the claimant, the employers, surety or anyone else to furnish medical, surgical or hospital care for claimant. Dr. Sutherland had previously notified Mr. Harn for Mr. Holt that he would not be available during June 1947, but he was at his Hospital and available at the time of the accident.

Notice of injury and claim for compensation was first made out May 29, 1947, the employer stating therein it was insured by the State Insurance Fund. June 18, 1947, a second notice of injury and claim for compensation was made, containing this statement by the employer:

"Insured by Idaho Compensation Company, and State Ins. Fund."

The Idaho Compensation Company, by answer denied liability because its policy was not in effect prior to June 20, 1947, and the State Insurance Fund was solely liable.

The State Insurance Fund admitted it was one of the sureties, but that the Idaho Compensation Company was equally liable and sought release from any medical liability because there was a claimed hospital contract in force and effect. Dr. Sutherland and his surety by answer sought release from liability on the ground he had never been asked for medical, surgical or hospital services, or given an opportunity to render the same.

Under the facts and circumstances herein, the Board correctly released the Idaho Compensation Company on the ground the cancellation of the State Fund policy was not effective until June 20, 1947; premiums were paid the State Fund until...