Johnson v. Armstrong & Armstrong

• Decision Date: 30 March 1937
• Docket Number: No. 4170.,4170.
• Citation: 66 P.2d 992,41 N.M. 206
• Court: New Mexico Supreme Court
• Parties: JOHNSONv.ARMSTRONG & ARMSTRONG et al.

41 N.M. 206

66 P.2d 992

JOHNSON

v.ARMSTRONG & ARMSTRONG et al.

No. 4170.

Supreme Court of New Mexico.

March 30, 1937.

Appeal from District Court, Lincoln County; George W. Hay, Judge.

Action by F. H. Johnson against Armstrong & Armstrong, employer, and the United States Fidelity & Guaranty Company, insurer. From an adverse judgment, plaintiff appeals.

Judgment reversed and cause remanded, with instructions.

Where surgeon suing employer and insurer for services rendered to injured employee alleged that employer's agent directed taking of employee to surgeon's hospital and insurer and employer denied employee was injured in course of employment but did not otherwise deny liability and insurer admitted it had paid portion of bill, such circumstances, in absence of any denial of agent's authority, authorized court to infer that agent acted within scope of his authority.

George A. Shipley, of Alamogordo, for appellant.

Hurd & Crile, of Roswell, for appellees.

BRICE, Justice.

The appellant was plaintiff below and will be so referred to in this opinion. The appellees Armstrong & Armstrong will be referred to as the employers; the appellee United States Fidelity & Guaranty Company as insurer; and Willie Bartlett, deceased, as employee.

The facts alleged by plaintiff include the following: The plaintiff is a physician and surgeon and maintains a hospital. The employers are contractors for the construction of roads, highways, etc. The insurer is a corporation authorized to do business in New Mexico, and had insured the employers, as required by the New Mexico Workmen's Compensation Act (Comp.St.1929, § 156-101 et seq.), for the protection of their employees. On the 4th of August, 1934, the employee was employed by employers and while engaged in the duties of his employment received injuries of a serious nature, and was taken by the agent of the employers to plaintiff's hospital for treatment. The plaintiff amputated the employee's legs and otherwise treated him until he died. The value of his services therefor was $310.

That Clara Bartlett, widow of the deceased, brought an action against the employers and the insurer for compensation under the Workmen's Compensation Act of New Mexico, which was settled by an agreed judgment based upon a stipulation filed in that cause. That one of the terms of the stipulation was as follows:

“That in addition to the compensation herein provided for, the defendant shall pay medical and surgical treatment of the deceased due to the injuries received in said collision, not to exceed the sum provided by law, to-wit, $350.00.”

Plaintiff also prayed for $125 attorney's fees.

As we read the employers' answer, it admits liability for reasonable surgical and medical treatment, not to exceed $350, and alleges that plaintiff had been paid $112.50 on such account, by the insurer; and denies that they owe any attorney's fees. The insurer admits that it issued a liability policy to the employers under the Workmen's Compensation Act, but claims that its liability is secondary and not primary. It denies its liability for the sum of $350, “but admits its responsibility to indemnify its principal herein for reasonable surgical attention.” It denies that the operation was performed on the employee, as stated in plaintiff's complaint, and denies that the services were worth $310.

By way of new matter, it alleges that it had paid the plaintiff $112.50, which was tendered in full settlement of all services, and that it had been accepted in full settlement by the plaintiff.

The cause came on later for trial and the employers and the insurer filed a joint pleading denominated “A Plea to the Jurisdiction of the Court,” in which it was alleged that the plaintiff had not legal capacity to sue, and the court had no jurisdiction to render judgment in behalf of the plaintiff “under and by virtue of chapter 105, §§ 411 and 415, 1929 Code,” because the Workmen's Compensation Act “is for the exclusive benefit of workmen and their dependents.” The effect of such plea is that the New Mexico Workmen's Compensation Act is for the benefit of employees and that it does not give the right to a physician or surgeon to bring a suit for medical or surgical attention against an employer or his surety. This plea was sustained and the proceeding dismissed. The plaintiff asked permission to amend his complaint by interlining the following:

“That the services herein rendered and the services sued for herein were perform ed, and the operation herein performed was at the request of the employer, Armstrong & Armstrong.”

This the court refused because “the complaint upon its face was based upon the Employer's Liability Act.”

There are certain features of the pleadings which we will refer to in greater detail.

It is stated in paragraph 7 of the complaint:

“That heretofore, to-wit, on or about the 4 day of August, 1934, the aforesaid Willie Bartlett, while engaged in driving a truck for the defendant Armstrong & Armstrong, and hauling gravel to be used in the construction of the aforesaid highway and overpass at or near Carrizozo, New Mexico, received injuries of a serious character, to his legs and body; and was immediately taken, by the agent of said Armstrong & Armstrong, to the hospital of the plaintiff for emergency treatment and operation by the plaintiff. That said Willie Bartlett was so injured in an accident arising out of and in the course of his employment by the defendant Armstrong & Armstrong, as aforesaid.”

The employers in answering this paragraph denied that the injury arose out of and in the course of, or as a result of, deceased's employment, and denied that the reasonable value of plaintiff's services was $310, but denied none of the other allegations quoted. They did not deny that they had stipulated to pay for the medical and surgical treatment which had already been furnished, nor did they deny the following allegation from paragraph 9 of the complaint:

“That...