Penn v. Standard Acc. Ins. Co.
| Citation | 4 A.D.2d 796,164 N.Y.S.2d 618 |
| Parties | Fred PENN, Appellant, v. STANDARD ACCIDENT INSURANCE COMPANY, Respondent. |
| Decision Date | 23 July 1957 |
| Court | New York Supreme Court Appellate Division |
Edward M. Segal, Albany, for plaintiff-appellant.
DeGraff, Foy, Conway & Holt-Harris, Albany, for respondent Standard Accident Ins. Co. Before BERGAN, J. P., and COON, HALPERN and GIBSON, JJ.
Appeal from an order of the Special Term, Albany County, dismissing the complaint.
The plaintiff suffered an accidental injury to his right leg on October 1, 1951, while in the employ of an employer insured by the defendant insurance company. An award of workmen's compensation benefits was made and duly paid; weekly benefits are still being paid to the plaintiff. An ulcer formed at the site of the wound on the plaintiff's right leg, which never completely healed despite repealed periods of treatment and hospitalization. On May 22, 1952, while the plaintiff was unemployed, he fell and injured his left leg. It was claimed that the second accident was due, at least in part, to the weakness of the right leg caused by the first accident but this was controverted by the employer and the defendant insurance carrier. The left leg became gangrenous and was amputated on September 27, 1952. The right leg continued to cause trouble and, on July 7, 1953, his physician recommended hospitalization but the hospital refused to admit the plaintiff, because of the large unpaid bill growing out of the injury to the left leg, unless the insurance carrier agreed in writing to pay the prospective hospital bill. A letter guaranteeing payment was signed by the defendant carrier on July 28, 1953, and the plaintiff was admitted to the hospital the next day. He remained in the hospital until September 21, 1953, when the ulcer seemed healed, but in December 1953, the ulcer reoccurred and further periods of hospitalization became necessary. Finally, in June, 1954, the ulcer reopened and could not be controlled and on June 22, 1954, a mid-leg amputation was made of the right leg. It is alleged by the plaintiff that the delay in hospitalization for 21 days in July, 1953, aggravated the plaintiff's condition and made the treatment of the ulcer more difficult and ultimately resulted in the need for amputation of the right leg.
The theory of the complaint is that the defendant was guilty of a breach of contract and a tort in causing the 21-day delay in the plaintiff's hospitalization. But when the complaint is read in the light of the plaintiff's own affidavits and the records of the Workmen's Compensation...
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