McCarty v. United Ins. Co.

• Decision Date: 01 June 1953
• Docket Number: No. 21855,21855
• Parties: McCART v. UNITED INS. CO.
• Court: Missouri Court of Appeals

Page 91

259 S.W.2d 91

McCART v. UNITED INS. CO.

No. 21855.

Kansas City Court of Appeals, Missouri.

June 1, 1953.

Richard H. Beeson, David P. Dabbs and Dean F. Arnold, Kansas City, for appellant.

William B. Teasdale, Kansas City, for respondent.

BROADDUS, Judge.

This is an action upon a policy of insurance issued by defendant to plaintiff, Mrs. Elizabeth McCarty. In the court below plaintiff had a verdict and judgment for the claimed indemnity of $62.50 and interest thereon in the sum of $7.70, plus a penalty of $6.25, and an attorney's fee of $200, or a total of $276.45. Defendant appeals.

The policy, styled 'Preferred Individual Hospital Expense Policy', insured plaintiff 'against financial loss due to hospital residence, hospital expense, surgical and other losses resulting from bodily injury sustained through accidental means * * *.' Under the schedule for 'Surgical Benefits' the amount payable for the fracture of an arm was $20. Under 'Part One' relating to 'Hospital Benefits' defendant agreed to pay insured, as a result of any one accident, the following: '(B) Use of operating room, not to exceed $10. (C) Anesthetics administered within a hospital, not exceeding $10. (D) X-Ray Examination, not to exceed $10. (F) Medicines, drugs, dressings, supplies, and any other necessary hospital expense, not to exceed $10. (G) Ambulance service to or from the hospital, not exceeding $5.'

Part 'Nine' of the 'General Provisions' of the policy provides: 'Any indemnity under this policy applies only while the insured is necessarily treated and confined as a patient in any hospital upon the advice of, and attended by, a legally qualified physician or surgeon other than himself, except as provided in parts four and five.'

Part 'Four' referred to in the preceding paragraph is entitled: 'Doctor Bills--Non-Disabling Injuries' and is as follows: 'If the insured suffers any injury sustained directly or exclusively of all other causes through accidental means which is not covered by hospitalization or surgical loss in any of the provisions of this policy but which shall require treatment by a legally qualified physician or surgeon, the Company will reimburse the insured in any amount not exceeding $5 * * *.'

Defendant admitted that it issued the policy and that plaintiff on January 6, 1950, suffered an injury through accidental means.

The undisputed facts are that when plaintiff fell in her home in Kansas City she sustained a severe injury to her right arm, to-wit: a comminuted fracture. Both bones in the forearm were 'broken and splintered.' Plaintiff immediately called her next door neighbor and told her that she had fallen and broken her arm. The neighbor called Dr. Valentine and told him what had happened and he 'ordered' that plaintiff be taken to 'Research Hospital for X-Rays, and to get there right away.' Whereupon the neighbor called a taxicab and plaintiff was rushed to the hospital. Upon reaching there plaintiff was taken to the X-Ray room which was on the fourth floor. An X-Ray was taken of her arm. She was given an anesthetic by a Dr. Peterson. Soon Dr. Valentine arrived and plaintiff was removed to the operating room. The splintered bones were removed and plaintiff's arm was set and placed in a cast. Plaintiff was in the hospital from 3:30 p. m. until 8:00 or 8:30 p. m. While there she was given sedatives and some tablets were placed in a sealed envelope which she took with her when she left the hospital.

It was admitted that plaintiff made due proof of loss. By letter dated February 9, 1950, defendant acknowledged receipt of the same and stated in its letter: 'We notice you did not enclose an itemized statement from the hospital showing expenses incurred. In order to properly consider the claim, it will be necessary that you submit this statement for the completion of our file.' Plaintiff in response to this request sent defendant an itemized statement for $62.50. On March 2, 1950, defendant wrote plaintiff as follows: 'Enclosed is our draft in the sum of $5, which is payable under Part Four of your policy for emergency medical treatment, due to injuries received by you.' On March 9 plaintiff wrote to defendant returning the $5 draft and again asserted her claim. By letter dated March 14, 1950, defendant acknowledged receipt of plaintiff's communication of March 9, and stated: 'Our investigation indicates it was not necessary for you to be...