Hoffman v. Mastin

• Citation: 119 S.W.2d 1027
• Decision Date: 03 October 1938
• Docket Number: No. 19197.,19197.
• Parties: HOFFMAN v. MASTIN et al.
• Court: Missouri Court of Appeals

119 S.W.2d 1027

HOFFMAN v. MASTIN et al.

No. 19197.

Kansas City Court of Appeals. Missouri.

October 3, 1938.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

"Not to be published in State Reports."

Action by Maxwell S. Hoffman against T. H. Mastin and others for amount expended for hospitalization of plaintiff's wife, under terms of certificate of membership in a health foundation. From an adverse judgment, the defendants appeal.

Reversed and remanded.

Howell & Jacobs and Scott R. Timmons, all of Kansas City, for appellants.

Philip L. Levi and I. James Wolf, both of Kansas City, for respondents.

SPERRY, Commissioner.

The plaintiff recovered a judgment against the defendants for $465, being part of an amount paid by him to Menorah Hospital in Kansas City for hospitalization for his wife, Leona Hoffman.

Plaintiff's claim arose in this manner: T. H. Mastin and Company, a partnership, was trustee for other defendants, who, as partners, were known as The National Health Foundation. On February 23, 1934, the trustee issued, on behalf of the Foundation, a certificate of membership to plaintiff, by which, for the consideration of $5.50 in cash and monthly payments thereafter of $2.50, it agreed to provide plaintiff, his wife, Leona, and daughter Audrey:

"Part C. All necessary hospital care and treatments (which shall consist of accomodations in rooms with two beds), meals, laboratory services (required by hospital rules only), and routine nursing services as long and as often as may be necessary, but in no event to exceed a total of three months for any one person in any one year of membership."

From the record, we find that on March 13, 1934, while this certificate was in force, Leona Hoffman went to her physician, Dr. Clasen, for examination. Her physician found her to be in need of hospitalization and he sent her to Menorah Hospital. Her husband was leaving for Texas immediately, and a Mrs. Waldner, sister of Mrs. Hoffman, was asked to and did notify Dr. Carbaugh, one of the members of The National Health Foundation, and medical director thereof, that Mrs. Hoffman had been taken to Menorah Hospital, and Dr. Carbaugh said it was all right and requested that Mr. Hoffman come in and see him on his return. In a few days, Mr. Hoffman returned and called upon Dr. Carbaugh and informed him Mrs. Hoffman was taken to the hospital because it was an emergency case. Plaintiff testified:

"A. I simply reported to the doctor that I was there to tell him I was trying to carry out the provisions of the contract by advising him that Mrs. Hoffman was in the hospital. He, among other things, said `Do you have a nurse, a private nurse?' I said, `We have.' He said, `It is unfortunate you even got a private nurse, because one of the benefits of the association entitled you to receive — to obtain a private nurse at half rate.'

"Dr. Carbaugh further said: `That is all right. The important thing, I know, with you is to get Mrs. Hoffman well, and when the time comes, why, we will straighten it out with you.'"

Mr. Hoffman saw Dr. Carbaugh three or four weeks later, when it became necessary to change nurses, at which time they discussed his wife's condition. She remained in Menorah Hospital from March 13th, until May 22, 1934, when she went home. She returned to Menorah Hospital on September 27, 1934, and died there on October 20, 1934. Dr. Clasen testified that she died of Addison's disease, with which she suffered in acute form at the time she first came to him in March.

Plaintiff testified, over objection, to conversations with a Mr. Lonergan, a partner in T. H. Mastin & Company (who had died prior to the time of trial), in the absence of Dr. Carbaugh, who was in Europe. The time of these conversations is not fixed, but it appears to have been during the summer, before Mrs. Hoffman went to the hospital the second time. Plaintiff said his reason for going to Mr. Lonergan was that Dr. Carbaugh had told him to "be sure to let me know when Mrs. Hoffman leaves the hospital." Mr. Lonergan told him not to worry about it; that just as soon as Dr. Carbaugh got back, he would go up and see him and see that everything was going to be O.K. Plaintiff talked to Mr. Lonergan a number of times before the latter's death in May, 1935. Mr. Lonergan told him he would take plaintiff to Dr. Carbaugh just as soon as the latter returned, but never did; and plaintiff never thereafter saw Dr. Carbaugh. He later talked to Mr. Ben Page, Secretary of T. H. Mastin & Company, at the office of the company, who sent plaintiff to Mr. Franke, attorney and adjuster for T. H. Mastin. Plaintiff asked Mr. Franke for payment and he said he would take it up with Dr. Carbaugh.

On April 16, 1934, defendants sent plaintiff a letter offering him a new certificate, for an additional fifty cents per month, in place of his old certificate. This new certificate included the benefits and services provided under the first, and added several other and additional services. The plaintiff accepted this offer, and a new certificate, No. 2110, was issued to him, dated May 23, 1934, which was the day after Leona Hoffman left the Menorah Hospital (according to the record). Plaintiff paid the sum of Three Dollars per month on the new certificate, and it is conceded on both sides he made no payment after July 23rd, which paid up to August 23, 1934.

The prayer of the petition was for $624, and the trial court, sitting as a jury, allowed plaintiff judgment for $465, being thirteen weeks hospitalization at $35 per week, $455; and five dollars each for two laboratory services at the hospital.

The plaintiff, Maxwell Hoffman, Mrs. Waldner, who conveyed the information to Dr. Carbaugh that Mrs. Hoffman had been taken to Menorah Hospital, and Dr. Arthur C. Clasen, attending physician, testified for plaintiff. Defendants offered no evidence and stood on their demurrer.

Motion for new trial unavailing defendants made application for and were allowed an appeal to this court. Defendants' first assignment of error here is based upon the action of the trial court in refusing to direct a verdict at close of the case, and is claimed to be erroneous for these reasons:

(a) Plaintiff failed to prove that hospitalization of his wife was obtained through the Medical Director of the National Health Foundation;

(b) Plaintiff failed to prove that the accommodations for his said wife in the hospital were in rooms with two beds;

(c) Plaintiff failed to prove by competent evidence the hospital charges;

(d) The evidence shows that Certificate No. 2110 was not in force at the time plaintiff's wife reentered the hospital in September, 1934;

(e) Plaintiff's wife died from a chronic disease called Addison's disease, and hence her ailment was not covered by either certificate as the death certificate shows that surgical treatment was not necessary.

We will discuss these assignments in their order. (a) Defendants argue that since the hospitalization was not furnished through its medical director, Dr. Carbaugh, the hospital charges here incurred were not within the provisions of the certificate. The wording of the certificate is that The National Health Foundation agreed "to provide". "Provide" is defined by Webster as:

2. To look out for in advance; to procure beforehand; to prepare.

3. To supply for use, afford; contribute; yield.

4. To furnish, supply, stock with.

5. To equip in preparation; fit out with means to an end.

Appellant insists that, under the terms of the certificates, it was the province of The Health Foundation to procure the hospital service; that application should have been made to it, through Dr. Carbaugh, for hospitalization, and, since plaintiff had procured the hospital service himself, without consulting Dr. Carbaugh, he did not come within the certificate provision. But the parties have construed this provision by their own acts, and the courts will look to the interpretation which the parties themselves have put upon the words they have used, where words or phrases are susceptible of several interpretations. It is to be observed that the service in controversy was not personal service, such as a physician might render, but a hospital service, which is largely standardized and not personal. The plaintiff treated hospitalization acquired by him as within the certificate, and Dr. Carbaugh, the Medical Director of the defendants, acquiesced in plaintiff's view by accepting notice thereof at the very beginning of the hospitalization, saying it was all right, "and when the time comes, we will straighten it out with you." This has been the attitude of the defendants through all of the...