Hospital Service Corp. v. Clifton

• Decision Date: 14 May 1940
• Docket Number: 4 Div. 544.
• Citation: Hospital Service Corp. v. Clifton, 196 So. 165, 29 Ala. App. 356 (Ala. App. 1940)
• Parties: HOSPITAL SERVICE CORPORATION v. CLIFTON.
• Court: Alabama Court of Appeals

196 So. 165

29 Ala.App. 356

HOSPITAL SERVICE CORPORATION v. CLIFTON.

4 Div. 544.

Court of Appeals of Alabama

May 14, 1940

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

Action on a contract of insurance by H. L. Clifton against the Hospital Service Corporation of Alabama. From a judgment for plaintiff, defendant appeals.

Affirmed.

McDowell & McDowell, of Eufaula, for appellant.

Comer &amp Grubb and Chauncey Sparks, all of Eufaula, for appellee.

BRICKEN Presiding Judge.

Suit was brought by the appellee against appellant company, upon a certain hospitalization certificate issued by appellant to appellee on November 24, 1937.

In the lower court the cause was tried before a jury resulting in a verdict for plaintiff for the sum of $157.50, and upon said verdict the judgment of the circuit court was duly pronounced and entered.

Within the time allowed by law, the defendant filed its motion for a new trial, which was overruled, and this appeal is from the final judgment, supra, and also from the action of the court in overruling defendant's motion for a new trial.

Upon the trial the plaintiff testified as a witness and his testimony tends to show that prior to November 24, 1937, a Mr. W. A. Horn, an agent or representative of the defendant corporation, went before the city council of the City of Eufaula, Alabama, and solicited a group application for hospitalization services for all of the city employees of said city; and at this time plaintiff was in the employment of said city as the fire chief thereof; that said city council subsequently gave said W. A. Horn, defendant's said agent, permission and authority to take applications from said city employees for said hospitalization service upon the understanding and agreement that the premiums to be paid for said service would be deducted by the city clerk of said city out of the monthly compensation paid by said city to said various employees of said city to be remitted by said city clerk to said Hospital Service Corporation of Alabama at Birmingham, Alabama, in payment of said premiums; that within a short time thereafter the said W. A. Horn, as agent of the defendant corporation, called upon plaintiff and requested him to sign, in blank, an application to said Hospital Service Corporation of Alabama, for said hospitalization service; that under said blank application a city employee of said city could apply for hospitalization service for himself and the members of his immediate family by listing on the application blank the name, or names, of such member, or members, of the applicants family as he desired to be protected by the payment of his premium for such service; that said application blank showed the amount of premium to be paid to said corporation for hospitalization service for a husband and wife; that when the defendant's said agent called upon plaintiff he requested plaintiff to sign said application in blank, to be later filled in by said agent in the event a sufficient number of said city employees necessary to form the group made application for this hospitalization service; that plaintiff signed said application in blank upon the express understanding and agreement with said agent that plaintiff was applying for hospitalization service for himself and wife, Mrs. H. L Clifton, one and the same person as Mrs.

Robbie C. Clifton, and that said agent was to fill in said application blank so as to cause the same to show that the hospitalization service applied for and to be rendered by defendant corporation would be for plaintiff and his said wife; that some time after he had signed said application blank and after it had been carried away by defendant's said agent plaintiff received a hospitalization service certificate and hospital admittance card from the defendant corporation and immediately noticed that the name of plaintiff's wife did not appear on either the certificate or hospital admittance card and that later on plaintiff wrote his wife's name on said admittance card; that this was done on the day said certificate and said card were received by plaintiff and that on the night of that day he saw Mr Horn, the defendant's said agent, and told him that the name of plaintiff's wife did not appear either upon the hospitalization certificate or on the admittance card received by plaintiff from defendant; that this was on the night of December 7, 1937, the first meeting night of the city council in the month of December, and that said agent then asked plaintiff where said certificate and admittance card were and that plaintiff replied that he had them with him and that he handed the card to said agent, who said: "I don't understand why, unless they made a mistake and left it off;" that plaintiff then asked said agent what he was going to do about it and that the agent replied--"I'll send it back to Birmingham and get them to straighten it out and put her name on it;" that some four or five days after this plaintiff again met the said agent, who told plaintiff that he had heard from Birmingham and that the Hospital Service Corporation of Alabama said that Mrs. Clifton's names were not on the card, or certificate, which had been issued to plaintiff and that she could not be included in the policy; that plaintiff then said to said agent: "Now, Mr. Horn, I had a perfect understanding that she was included in my policy. If that's the way the thing has worked out you just write Birmingham and tell them I said cancel my policy, that I didn't want it if my wife is not included in the policy; I don't want it, they can cancel it;" that thereupon said agent requested plaintiff not to cancel the policy but to give the agent a chance to see what he could do about it; that plaintiff consented to do this but told said agent that if said Hospital Service Corporation refused to include plaintiff's wife in said policy that then said agent should cancel the policy while he was up there; that afterwards and about December 15th, or 16th, plaintiff met said agent at the Post Office in Eufaula and that said agent then and there said to plaintiff: "Well, I've been to Birmingham and took up your matter with them and they told me to come back here and tell you by special permission they had included your wife in your policy and they (that) you would have to pay her premium quarterly;" that plaintiff accepted and agreed to this proposal and requested said agent to come by the store and that plaintiff would give him a check for said quarterly premium and that said agent could send the check and papers back to Birmingham; that the agent then told plaintiff that he would come by and get those things and send them along with the check; that subsequently, on or about January 10th, said agent came in and said--"Well, I've come after that little card and thing now;" that said agent laid another one of the little cards upon the counter for plaintiff to sign and that plaintiff asked him--"Do I have to sign another one? I've signed one;" that the agent replied--"Yes, you have to sign one for her;" that plaintiff signed his name on the card for his wife and also signed and delivered to said agent a check for $2.60, the quarterly premium, and covering the same date plaintiff's policy covered; that he wrote on the left hand corner of the check the date the quarterly premium was to cover--"11/24/37 to 2/24/38" which dates covered the date plaintiff's policy was issued and the next succeeding date when another quarterly premium would be payable for plaintiff's wife; that the defendant received, endorsed and cashed said check; that plaintiff's wife suddenly became ill on January 17th and that plaintiff carried her to the Salter...