Texas Employers' Ins. Ass'n v. Drummond

• Decision Date: 18 December 1924
• Docket Number: (No. 1696.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 267 S.W. 335
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. DRUMMOND et al.
• Court: Texas Court of Appeals

Page 335

267 S.W. 335

TEXAS EMPLOYERS' INS. ASS'N v. DRUMMOND et al.

(No. 1696.)^*

Court of Civil Appeals of Texas. El Paso.

December 18, 1924.

Rehearing Denied December 31, 1924.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Suit by the Texas Employers' Insurance Association against W. H. Drummond and others to set aside an award of compensation for personal injuries and medical treatment of the Industrial Accident Board under the Workmen's Compensation Act to defendants. Judgment for defendants, and plaintiff appeals. Affirmed.

Lea, McGrady, Thomason & Edwards, of El Paso, for appellant.

Loomis & Kirkland, of El Paso, for appellees.

HARPER, C. J.

Appellant filed this suit in the district court against appellees to set aside an award of the Industrial Accident Board to the appellees, as follows: Drummond, insured, for $231.30 for his personal compensation and for $908.75 for the use and benefit of physicians, nurses, drugs, and hospital charges, affirmed by the court, and an appeal is perfected by the Texas Employers' Insurance Association.

The first proposition that the recovery for the physicians' charges of Miller and Wright, because of failure to plead and prove that they had complied with article 5736, Revised Civil Statutes of Texas, which makes it unlawful for one to practice medicine without registering with the district clerk his authority for so practicing, is overruled for the reason that this is a defensive matter, not pleaded as a defensive, and was first urged in motion for new trial. We therefore hold that it comes too late, Cone v. Texas Emp. Ins. Ass'n (Tex. Civ. App.) 251 S. W. 262, for had it been so pleaded, no doubt the evidence would have been that these physicians had so qualified.

3, 4, and 5 are to the effect that the judgment for doctors bills, for operation, hospital charges, and medicines, etc., is erroneous, because the evidence shows that there was no authority from the Texas Employers' Insurance Association, for furnishing same, and because they were advanced after the expiration of two weeks from date of alleged injury, and that there was no compliance with section 7, pt. 1, of Workmen's Compensation Act, now R. S. art. 5246 — 9, Complete Stat. 1920.

It conclusively appears that the provisions of these articles with respect to a physician and surgeon certifying to the necessity for surgical operation and additional hospital services after the expiration of one week were not complied with, but the case was tried by appellees upon the theory that the local agent had notice of all things that were being done, and in fact authorized all steps so taken by the parties seeking a recovery, and for that reason the appellant cannot defeat recovery.

The appellee pleaded that he was employed by the Southwestern Motors Company, a corporation, and a subscriber of appellant; that he sustained an injury; that medical aid, hospital services, nurses, and medicines were necessary and were supplied. There was affirmative testimony to support these allegations, and the jury found in his favor upon all of the matters so pleaded.

But appellant urges that McCabe, their local agent, was not shown to have been authorized to bind the company in this way and thereby to relieve the appellees of full compliance with the provisions of the statutes. There are many circumstances in evidence which tend to prove that McCabe was the duly authorized agent of appellant, such as statements in evidence made to Dr. Miller at the time he took over the case and during the entire time of the treatment, such as Miller's written reports of the progress of the case in writing to McCabe which were requested by the latter, etc., and McCabe testified:

"I have been acting as district manager for the Texas Employers' Insurance Association since I have been in El Paso. I have jurisdiction as far as Pecos, Ft. Stockton, Alpine, etc. I have been, during all this time, investigating alleged injuries received by employees of the subscribers; have been dealing with doctors in seeing that medical attention was given to patients — the same sort of thing that I did in this case when I was there in Drs. Witherspoon and Picket's office when this fellow came up. I knew they were carrying him to Hotel Dieu. I knew that our doctors there recommended that he go to Hotel Dieu. They were taking him there for examination. I knew, as a matter of fact, that he was being carried there at the expense of the company, first aid. I was standing for that first-aid expense, yes. I had authority from the company to not protest against any liability of that sort being incurred by these doctors until we found out there was no liability. All other claims that have been paid have been paid through my office since I've been manager of this district. I have negotiated for those claims with the doctors and interested parties in endeavoring to come to some agreement. In this instance I kept fully informed as to the steps taken on this fellow. I got reports from Dr. Miller. In one or two instances by consent of the company I have authorized the doctor he wants to take care of him."

This is sufficient evidence to constitute prima facie proof that McCabe was the agent of the appellant and authorized to bind the company and to fix liability therefor for all the acts of the physicians, nurses, hospital, and medicines, as well as for the operation, which, under the testimony and findings of the jury, were necessary, and charges reasonable. If McCabe did not in fact have authority to do these things, which his acts and declarations show he had, it would have been an easy matter for the company, through its managing officers, to show the extent of his authority. By these things the appellant has waived a technical compliance with the provisions of the statutes quoted. Miller's Indemnity v. Patten et al. (Tex. Civ. App.) 238 S. W. 240.

By 7, 8, and 9, the points are urged that the trial court erred in admitting the testimony of Lester and Dr. Miller that McCabe told them it would be all right for Miller to take over Drummond's case and go ahead with it, upon the proposition that the declarations of a person purporting to bind a principal are not competent evidence against the principal, unless authority for their utterance is shown. That McCabe was the agent of appellant is not questioned; the only thing questioned is the extent of his...