Methodist Hospital of Ind., Inc. v. Town & Country Mut. Ins. Co.

• Decision Date: 27 April 1964
• Docket Number: No. 1,No. 19949,19949,1
• Citation: 136 Ind.App. 184,197 N.E.2d 773
• Parties: METHODIST HOSPITAL OF INDIANA, INC., Appellant, v. TOWN & COUNTRY MUTUAL INSURANCE COMPANY (a corporation), Appellee
• Court: Indiana Appellate Court

Page 773

197 N.E.2d 773

136 Ind.App. 184

METHODIST HOSPITAL OF INDIANA, INC., Appellant, v. TOWN & COUNTRY MUTUAL INSURANCE COMPANY (a corporation), Appellee.

No. 19949.

Appellate Court of Indiana, Division No. 1.

April 27, 1964.

Rehearing Denied June 4, 1964.

See 198 N.E.2d 873.

William S. Hall, Dowden, Denny, Caughran & Lowe, Indianapolis, for appellant.

C. Wendell Martin, Bredell, Cooper & Martin, Indianapolis, for appellee.

FAULCONER, Judge.

This is an appeal by plaintiff-appellant, Methodist Hospital of Indiana, Inc., ¹ which refused to plead over after the trial court sustained separate demurrers filed by the defendant-appellee, Town & Country Mutual Insurance Company, to both paragraphs of plaintiff-appellant's amended complaint.

The facts generally, as disclosed by plaintiff's amended complaint in two paragraphs, are that one James Murphy was injured on July 4, 1958, while a passenger in an automobile being driven by a third person, with the permission of the owner who was insured by appellee; that James Murphy was admitted to appellant-Hospital on July 5, 1958, and remained there until September 5, 1958, where he was treated for such injuries; and that he incurred charges for such care in the amount of $1,957.95.

That on the 25th day of August, 1958, James Murphy assigned, in writing, to appellant the sum of $1,664.30 'payable out of and from any recovery, judgment, settlement, insurance, or other moneys paid or payable to me by any person, firm, corporation or insurance company by reason of said accident or the injuries or damages caused thereby.'

That thereafter on the 26th day of August, 1958, a copy of the assignment was forwarded to appellee by appellant-Hospital.

That some time between January 1, 1960, and July 12, 1960, appellee made the following payments to the said James Murphy: the sum of $1,000, being the maximum liability under the medical payments provision of the policy of insurance, and the sum of $11,500 in settlement of the liability coverage under such policy of insurance.

That thereafter (the record before us fails to show the date) the said James Murphy paid to appellant-Hospital the sum of $1,305.30, leaving unpaid a balance of $652.65.

There is no dispute that the automobile was being driven with the permission of the named insured; that James Murphy came within the terms of the medical payments provision, or that the maximum benefits under said provision were $1,000.

Appellee filed separate demurrers alleging that Paragraph I and Paragraph II of appellant's amended complaint do not state facts sufficient to constitute a cause of action against appellee. Appellee's memorandums to its demurrers to Paragraphs I and II of appellant's amended complaint allege, in identical language, that said paragraph prays judgment on account of defendant-appellee's failure to honor an assignment of a claim for personal injury to one James Murphy; that said assignment, at that time and at the present time, was, and is, invalid and unenforceable under Indiana law as it is against public policy of this State; that no claim for injury to the person which would not survive the death of the assignor is assignable and that the claim of James Murphy would not have survived his death.

In each memorandum of said demurrers appellee further points out that even if the medical payments portion of the claim of plaintiff-appellant's assignor was assignable at the time of this assignment, the amended complaint shows on its face that such portion has been paid by appellant-Hospital's assignor and such payment is a complete defense to this action regarding the assignment of the claim for medical payments insurance benefits.

The trial court having sustained appellee's demurrers and appellant refusing to amend its complaint or plead over, judgment was entered 'that the plaintiff take nothing by this action * * *.'

Appellant assigns as error the trial court's ruling sustaining the demurrers to Paragraphs I and II of appellant's amended complaint.

Each paragraph of a complaint must be tested by its own averments. Lake Erie & W. R. Co. v. Holland (1904), 162 Ind. 406, 414, 69 N.E. 138, 63 L.R.A. 948; Citizens Tel. Co. v. Fort Wayne, etc. R. Co. (1913), 53 Ind.App. 230, 233, 100 N.E. 309; Lake Erie & W. R. Co. v. Moore (1908), 42 Ind.App. 32, 36, 81 N.E. 85, 84 N.E. 506; 23 I.L.E. Pleading § 38, p. 276.

Inasmuch as the policy limit under the medical payments provision is, by agreement, limited to $1,000, it appears, from a reading of the briefs and the record before us pertaining to Paragraph I of the amended complaint, the issue here is not so much its assignability but the full payment of the debt.

Appellant, in Point I of the argument section of its brief, argues that Paragraph I of its amended complaint is good as against the demurrer because it alleges the assignment to appellant by the patient of a fund due the patient by appellee under contract and money claims arising out of contract are assignable. Appellee fails to argue the assignability of the claim under the medical payments provision of said policy upon which Paragraph I of said amended complaint is based and takes no issue with appellant's argument that rights ex contractu are assignable, but argues that Paragraph I of the amended complaint shows on its face that appellant-Hospital has already received from assignor-Murphy $1,305.30 on its bill, and further shows that medical pay coverage was limited to $1,000.

Payment of a debt to the assignee entitled thereto constitutes a valid discharge of the indebtedness. 3 I.L.E. Assignments § 35, p. 117; 6 C.J.S. Assignments § 98a(1), p. 1153.

Generally, the assignee can take no greater right than was possessed by his assignor. Southern Surety Co. v. Merchants, etc., Bank (1932), 203 Ind. 173, 194, 176 N.E. 846, 179 N.E. 327; Foltz v. Wert (1885), 103 Ind. 404, 409, 2 N.E. 950; 3 I.L.E. Assignments § 33, p. 115.

The rights of appellant-Hospital, as assignee, were the same as the rights held by James Murphy, as assignor, against appellee under the medical payments provision of appellee's policy. Therefore, inasmuch as James Murphy was limited to recovery of the maximum benefits under the medical payments provision of the insurance policy, it follows logically that appellant-Hospital would likewise be subject to such limitation.

An examination of Paragraph I of appellant's amended complaint shows an allegation by appellant that the maximum benefit under the medical payments benefit provision of said policy was $1,000. It also reveals an allegation that appellee paid to James Murphy $1,000, 'being the amount of its maximum liability under the said medical payments provision' and also an allegation that 'payment was made to the plaintiff [appellant-Hospital] in the amount of $1,305.30, leaving a balance due the plaintiff of $652.65 which is wholly unpaid.' (Emphasis supplied.)

Appellant argues that since a demurrer admits all facts well pleaded and Paragraph I of appellant's amended complaint alleges that only $104.42 of the $1,000 medical benefits were returned to appellant-Hospital by the patient, this was admitted by the demurrer.

Appellant arrives at this figure in rhetorical paragraph 11 of Paragraph I of its amended complaint which, in pertinent part, is as follows:

'By reason of the commingling of such funds $1,000.00 of the $12,500.00 commingled fund represented the medical benefits payable under the insurance policy and thereby out of any distribution of such funds 1 000/12,500 represented a disbursement of the medical benefits, and plaintiff believes and therefore avers that 1 000/12,500 of the $1,305.30 paid to it namely, $104.42, was a disbursement to it of the medical benefits, thereby $895.58 of the medical benefits were paid to others.'

A demurrer for want of facts admits as true all facts that are well or sufficiently pleaded, but it does not admit conclusions of law and does not admit all the conclusions which may be drawn from such facts by the pleader. Greathouse v. Board, etc. (1926), 198 Ind. 95, 108, 151 N.E. 411; Western Union Telegraph Company v. Taggart, Auditor, et al. (1895), 141 Ind. 281, 283, 40 N.E. 1051, 60 L.R.A. 671; Bell v. New York Life Insurance Company (1963), 134 Ind.App. 614, 190 N.E.2d 432, 435; Morton v. City of Aurora (1933), 96 Ind.App. 203, 209, 182 N.E. 250 (Transfer denied.)

In the case of State ex rel. Padgett, Prosecuting Attorney v. Foulkes et al. (1884), 94 Ind. 493, at page 497, the court said:

'Where there are contradictory allegations, we must construe the pleading against the pleader, for upon him rests the burden of affirmatively stating a cause of action or defence, and if he annihilates one allegation by another, nothing is affirmed.'

It is specifically alleged in Paragraph I of the amended complaint that appellant received a sum in excess of the maximum amount recoverable under the medical payments provision of said policy.

To hold that the demurrer admitted as true appellant's mathematical equation along with its conclusion that only $104.42 of the $1,305.30 applied to the bill of appellant would, at best, create conflicting allegations in the same paragraph of complaint.

We, therefore, find no error in the trial court's sustaining the demurrer to Paragraph I of appellant's amended complaint for want of facts.

We now consider appellant's second assignment of error, i. e., the ruling by the trial court sustaining appellee's demurrer to Paragraph II of appellant's amended complaint.

Under Acts 1937, ch. 292, § 2, § 2-403, Burns' 1946 Replacement, an action for personal injury survives to a limited extent in event of the death of the wrongdoer, but not in the event of the death of the person injured. Allen v. Whitehall Pharmacal Co. (1953), D.C., 115 F.Supp. 7.

Appellant first contends that this cause should be governed by the 1959 amendment to Burns' § 2-403, being Acts 1959, ch. 309, § 1, which amendment provided for...