Gilbert v. Am. Cas. Co., (No. 9493)

Citation126 W.Va. 142
Decision Date19 October 1943
Docket Number(No. 9493)
CourtSupreme Court of West Virginia
PartiesEzra Gilbert v. American Casualty Company
1. Evidence

A verdict supported principally, or largely by evidence elicited by continuous questioning which is distinctly leading in character over objection of the opposite party will not be sustained unless it appears that the admission of such evidence was not prejudicial.

2. Witnesses

A nurse should not be permitted to testify as to the propriety of, or the necessity for, the treatment administered by her to a patient, when the only showing of her qualification is her own statement in evidence that she was a "graduate nurse".

3. Insurance

Under a provision of a policy of automobile accident and public liability insurance requiring the insurer to pay the "expenses incurred by the Insured, in the event of bodily injury, for such immediate medical and surgical relief to others as shall be imperative at the time of accident", the liability of the insurer is confined to expenses incurred at or immediately following the accident, for emergency treatment as distinguished from treatment subsequently administered which is distinctly curative in character, however proper or necessary.

4. Insurance

In an action to recover under the provisions of an automobile accident policy covering only expenses incurred by the insured for such immediate relief to a person injured as shall be imperative at the time of accident, where it clearly appears that the verdict includes expenses for normal rehabilitative treatment rendered after the necessity for emergency aid no longer existed, the verdict should be set aside.

Error to Circuit Court, Mercer County.

Action by Ezra Gilbert against American Casualty Company to recover under provisions of an automobile liability policy the amount alleged to have been incurred by plaintiff for immediate medical and surgical relief to guest passengers injured, without his fault, when his automobile was struck by another. To review a judgment for plaintiff, the defendant brings error.

Reversed and remanded.

Richardson & Kemper, for plaintiff in error. Jerome Katz, for defendant in error.

Rose, Judge:

To a judgment of the Circuit Court of Mercer County in favor of Ezra Gilbert and against American Casualty Company for Eight Hundred Thirty-five Dollars and Sixty Cents ($835.60) and interest;, we awarded this writ of error.

The action is for the recovery of a claim of the plaintiff for expenses alleged to have been incurred by him for immediate medical and surgical relief to guest passengers injured, without his fault, when his car was struck by another, and which is claimed to have been imperative at the time of the accident. The plaintiff was covered by a policy of insurance issued by the defendant which contained the following provision: "'It is further agreed that * * * the company shall * * * pay * * * expenses incurred by the Insured, in the event of bodily injury, for such immediate medical and surgical relief to others as shall be imperative at the time of accident."

On October 1, 1940, the plaintiff with his wife and her sister, Mrs. Edna Goldstein, as guests in his car, was driving on a public highway near Harrisonburg, Virginia. His car was struck by another, whose sole fault for the accident is not questioned. Both women were injured. Mrs. Gilbert's injuries proved to be slight, but those of Mrs. Goldstein are shown to have included a fractured skull, a fractured sixth cervical vertebra, a fractured shoulder bone, a dislocated jaw, and lacerated face with profuse bleeding, accompanied by severe shock and unconsciousness. The plaintiff hurried both women to a hospital in Harrisonburg, where they were admitted, and where they received prompt and appropriate physical examination followed by hospital care and surgical treatment. Mrs. Gilbert was discharged within two or three days from her admission, but Mrs. Goldstein remained in the hospital until November 6, 1940. The entire expenses of both women, including the bills of the hospital and those of the surgeons and nurses, were paid by the plaintiff, amounting in the aggregate to the sum for which judgment was rendered. Claim was made by the plaintiff to the insurance company for reimbursement for this expense, which was refused. At the trial the defendant tendered and paid into court the sum of Fifty Dollars, which it asserted to be sufficient to cover its whole liability under the policy. The ultimate question on the trial was as to what portion of plaintiff's claim, if any, above the Fifty Dollars tendered, was recoverable under the provisions of the policy.

The examination of Mrs. Gilbert disclosed that she had received no injuries of serious consequence, and she received no treatment other than sedatives within the two or three days during which she remained in the hospital. Mrs. Goldstein was admitted to the hospital about eleven o'clock a. m. She was given what was by the surgeons called "treatment for shock" and was immobilized as a protection against further aggravation of her injuries by her own movements. An X-ray examination was made about five o'clock p. m, of that day, by which the extent of her injuries was discovered. She was wholly unconscious for about twelve hours and had extended recurring irrational periods for several weeks, caused, according to the testimony, by the skull fracture. The laceration of her face prevented the application of a cast to her injured neck. She was, therefore, permanently immobilized in bed by the use of sand bags, and required thereafter constant attention by nurses lest some movement of hers increase the pressure of the broken vertebra on the spinal cord and produce paralysis. No reduction of any of the fractures was required, and no operation of any kind was performed except a puncture of the spinal cord to relieve pressure on the brain, occasioned by the skull fracture. In this manner she was detained in the hospital until she had sufficiently recovered for discharge.

Some appraisal of the policy provision relied upon by the plaintiff is necessary. This provision is apparently now common but relatively new. Therefore, judicial interpretations thereof, though found in reported cases, are not many. We think, however, that, as applied to this case, little difficulty in the way of its construction will be encountered

It is at once seen that the coverage given by this provision of the policy is of very limited extent. It cannot by any construction be made to cover all expenses of or all injuries of all persons in every wreck in which the assured's car may have a part. For example, the coverage is limited to expenses for medical and surgical "relief" to injured persons. This word is very clearly intended to be in contradistinction to some other surgical or medical treatment. The word standing alone connotes, in common parlance, temporary and emergency assistance. The word by Webster is denned as "Act of relieving, or state of being relieved; the removal, or partial removal, of any evil, or of anything oppressive or burdensome, by which some ease is obtained; succor; alleviation; comfort; ease"; and as "that which removes or lessens evil, pain, discomfort, uneasiness, etc.; that which gives succor, aid or comfort". The character of surgical or medical aid intended by the word "relief", therefore, must necessarily be limited to such things as are done to prevent suffering, to stop further progress of the injury, or death, rather than to include the normal treatment for the cure and healing of the injured person. Employers' Liability Assurance Corporation v. Manget Bros. Co., 45 Ga. App. 721, 165 S. E. 770; Dunham v. Philadelphia Casualty Co., 179 Mo. App. 558, 162 S. W. 728; United States Casualty Co. v. Johnston Drilling Co., 161 Ark. 158, 255 S. W. 890; Alsam Holding Co. v. Consolidated Taxpayers' Mut. Ins. Co., 4 N. Y. S. (2d) 498; Taylor v. Federal Surety Co., 225 Ky. 335, 8 S. W. 2d 409; Dime Taxi Co. v. Central Mutual Ins. Co., 180 S. C 426, 186 S. E. 391.

But it is not even all such "relief" that is covered by the policy, but only that which is "immediate" and "shall be imperative at the time of accident". Treatment which would normally be administered from time to time subsequently, or even emergency assistance rendered neces- sary by subsquent developments, is not included. Dunham v. Philadelphia Casualty Co., supra. To a lay mind certain surgical aid might, without question, be accepted as being immediately imperative, such as an...

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3 cases
  • Auto Club Prop. Cas. Ins. Co. v. Moser
    • United States
    • Supreme Court of West Virginia
    • April 25, 2022
    ...liability is authorized to provide limited medical care in order to mitigate damages." Id. § 1; see , e.g. , Gilbert v. Am. Cas. Co. , 126 W. Va. 142, 27 S.E.2d 431, 434 (1943) (examining a policy provision where "the company shall ... pay ... expenses incurred by the Insured, in the event ......
  • Gilbert v. American Cas. Co.
    • United States
    • Supreme Court of West Virginia
    • October 19, 1943
    ...27 S.E.2d 431 126 W.Va. 142 GILBERT v. AMERICAN CASUALTY CO. No. 9493.Supreme Court of Appeals of West Virginia.October 19, 1943 [27 S.E.2d 432] . .          [126. W.Va. 143]  Richardson & Kemper, of ......
  • Martinez v. Gulf Ins. Co.
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    ...77 A.L.R. 1191; * * *.' See also Dunham v. Philadelphia Casualty Co., 179 Mo.App. 558, 162 S.W. 728. Compare Gilbert v. American Casualty, Co., 126 W.Va. 142, 27 S.E.2d 431. Appellant also contends that in order for appellee to recover it is necessary that there be a judgment against appell......

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