Maryland Cas. Co. v. Thomas, 6589

• Decision Date: 02 April 1956
• Docket Number: No. 6589,6589
• Parties: MARYLAND CASUALTY COMPANY, Appellant, v. Ray THOMAS et al., Appellees.
• Court: Texas Court of Appeals

Page 652

289 S.W.2d 652

MARYLAND CASUALTY COMPANY, Appellant, v. Ray THOMAS et al., Appellees.

No. 6589.

Court of Civil Appeals of Texas, Amarillo.

April 2, 1956.

Rehearing Denied April 30, 1956.

Simpson, Clayton & Fullingim, Amarillo (Richard E. Stokes, Jr., Amarillo, of counsel), for appellant.

Boyer & Lemon, Perryton, for appellees.

PITTS, Chief Justice.

This is an appeal from a judgment awarding a balance due of $834.90 for services and medical expenses sought under the terms of a public liability automobile insurance policy as a result of injuries received because of an automobile accident. Appellee, Ray Thomas, the insured, on behalf of himself and his minor son, Kim Thomas, filed suit against appellant, Maryland Casualty Company, the insurer, for a balance due under the terms of said policy as a result of injuries received by Kim Thomas on July 25, 1953, when an accident occurred while he was riding in his father's automobile at a time when there was coverage under the terms of the said policy. As a result of the injuries of Kim Thomas, nine years of age, he spent some three weeks in a hospital where he received medical treatment, for which appellant paid $165.10 under the terms of the policy. Kim also received serious injuries to his mouth and teeth as a result of the accident, for which appellee claimed appellant was liable but appellant disclaimed further liability because of alleged policy limitations, which controversy resulted in the filing of this action.

The case was tried to the court without a jury as a result of which judgment was rendered for appellee as previously stated, from which judgment an appeal has been perfected. Appellant admits the boy's injuries and the policy coverage except for the alleged policy limitations relied upon as a defense.

The case involves the question of a proper construction to be given the medical payment clause of the policy in question wherein appellant obligates itself 'to pay all reasonable expenses incurred within one year from the date of the accident for necessary medical, surgical, ambulance, hospital, professional nursing and funeral expenses, to or for each person who sustains bodily injury, sickness or disease caused by accident while in or upon, entering or alighting from the automobile.' The terms of the policy likewise limit recovery to $1,000 for each person injured in the accident, for which reason the judgment for recovery was limited to $864.90, after appellant had already paid $165.10 for hospital and medical care as a result of Kim Thomas' other injuries sustained.

The record conclusively reveals that the term of the policy was for one year, from date September 22, 1952, to September 22, 1953; that the boy was injured as a result of the accident which occurred on July 25, 1953; that appellee took his son Kim to a dentist who found he had lost two front teeth and others were injured as a result of the accident, but because of the boy's age it would take considerable time to securely pepair the damages done to the growing boy's mouth and teeth; and that the dentist, after making X-rays and conducting a careful examination over a period of time, furnished a full estimate of $1,050 as the reasonable cost for completing the work successfully, that appellee had already paid the said sum to the dentist but that such work could not be successfully and securely completed within one year from the date of the accident which resulted in the injuries.

Only two witnesses gave oral testimony, namely appellee, Ray Thomas, and the dentist, Dr. M. G. Wood. Dr. Wood testified that Kim Thomas had been his patient prior to his injuries in question; that he examined Kim's mouth injuries and his teeth soon after the injuries were sustained and found two front teeth gone and others needing attention but to repair such securely would take some time; that he thereafter examined Kim's mouth and teeth several times and on December 11 and 12, 1953, he made X-rays of the conditions found and thereafter prepared an estimate of the cost of Kim's necessary repairs and gave copies of the same to appellee, Ray Thomas, and to appellant's agents. After giving such testimony, Dr. Wood gave the following testimony in response to questions propounded:

'Q. All right, sir. Why didn't you treat Kem Thomas as of that date?' (December 11 and 12, 1953). A. The age of the patient determines what we can do. In other words, at his age, he is so-his growth pattern has not been established. The problem is what we could do at that particular time that would help him. After considering it quite completely we determined to-or we came to the conclusion to keep the case under observation for awhile. And if I may go into this in a little detail, sir?

'Court: Yes, sir.

'A. Kem Thomas was approximately about nine years old when this happened. And at nine years we have the upper right central and lateral incisor permanent teeth. We have the upper right cuspid, is a baby tooth. Therefore, there is no way to restore that at that particular time by bridge work. In other words, the deciduous cuspid would not carry the end of the load. So, then on further examination at a little later date we found that the permanent eye tooth had begun to shift forward toward the median line and, of course, that kept us from doing anything at that time. Of course, at that age there is no way possible to determine the complete extent of his injury.

'Q. Doctor, can you tell-could you tell with any degree of accuracy the type of treatment ...