Mississippi Hospital and Medical Service v. Lumpkin

• Decision Date: 15 December 1969
• Docket Number: No. 45539,45539
• Citation: 229 So.2d 573
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI HOSPITAL & MEDICAL SERVICE v. Buck LUMPKIN.

Page 573

229 So.2d 573

MISSISSIPPI HOSPITAL & MEDICAL SERVICE v. Buck LUMPKIN.

No. 45539.

Supreme Court of Mississippi.

Dec. 15, 1969.

Hedgepeth & Hedgepeth, Sally McDavid, Jackson, for appellant.

Smith & Smith, M. D. Tate, II, Picayune, for appellee.

BRADY, Justice.

This is an appeal by Mississippi Hospital & Midical Service from a final decree of the Chancery Court of Pearl River County, Mississippi, wherein the appellant was found to be indebted to Buck Lumpkin, the appellee, in the amount of $1,443.45 under a contract for hospital services. From this judgment an appeal was taken.

On June 5, 1955, Mr. Buck Lumpkin, appellee, executed a written application for insurance with the appellant, Mississippi Hospital & Midical Service, hereinafter designated as Blue Cross, seeking a subscriber's contract covering himself and his wife, Mrs. Lena K. Lumpkin. The subscriber's basic policy number 234066 was duly issued, effective July 1, 1955, to appellee and his wife. The subscriber's contract contains the usual exclusion of benefits on account of diseases, illnesses, or disabilities that existed on or before the effective date of the contract. While this subscriber's contract was in force and effect and during the year 1956, the wife of the appellee, Mrs. Lena K. Lumpkin, contracted cancer or carcinoma of the right breast, which a biopsy disclosed, and which required hospitalization and medical and surgical services, including a right radical mastectomy or amputation of the right breast, with the removal of lymph glands and tissue. Since this cancer or carcinoma did not exist on or before the effective date of the subscriber's contract, the appellant allowed full contract benefits for her hospitalization and surgical services in the year 1956. Thereafter, on September 7, 1957, the appellee made written application with the appellant for an endorsement or rider to his subscriber's contract that offered supplemental benefits to those offered by his subscriber's contract. The appellee failed to indicate in the space provided on the application that Mrs. Lumpkin had had cancer. Thereafter, while this Revised Catastrophic Illness Endorsement was in full force and effect, Mrs. Lumpkin again contracted or suffered a recurrence of cancer or carcinoma which required hospitalization and medical and surgical services in connection therewith requiring the mastectomy of the left breast. Since this condition, as the previous one, did not exist on or before the effective date of the subscriber's contract, full subscriber's contract benefits were allowed pursuant to hospitalization and surgical services to the extent of $800.95. Since Mrs. Lumpkin had previously had cancer which existed and was manifest prior to the effective date of the Revised Catastrophic Illness Endorsement, the appellee was denied any benefits whatsoever under the Revised Catastrophic Illness Endorsement because of the explicit prohibitive provision of the endorsement. This provision is as follows:

PROVIDED, notwithstanding any other provision hereof, (1) no benefits shall accrue hereunder on account of cancer in a case where the patient has ever had cancer before the effective date hereof, or the date revised as set out above, which ever is the later.

In the absence of this provision and the exclusion of the subscriber's contract incorporated by reference into the enforsement, or if Mrs. Lumpkin had never had cancer prior to the effective date of the endorsement, the appellant would have been...