National Cas. Co. v. Hudson

• Decision Date: 27 March 1945
• Docket Number: 6 Div. 142.
• Citation: 32 Ala.App. 69,21 So.2d 568
• Parties: NATIONAL CASUALTY CO. v. HUDSON.
• Court: Alabama Court of Appeals

21 So.2d 568

32 Ala.App. 69

NATIONAL CASUALTY CO. v. HUDSON.

6 Div. 142.

Alabama Court of Appeals

March 27, 1945

Jackson Rives & Pettus, of Birmingham, for appellant.

G. R. Harsh, of Birmingham, for appellee.

CARR Judge.

This suit was originally filed by appellee, Mrs. Etta M. Hudson against appellant, National Casualty Company, in the Intermediate Civil Court of Birmingham. It is sought in the complaint to recover damages for the alleged breach of an indemnity provision in an insurance contract. The basis for the claim is for surgical and hospital services incident to an operation on Ronald Hudson, a member under the policy contract. After judgment in favor of appellee in the primary court, appellant appealed to the circuit court, where the cause was tried by the judge without aid of a jury. Again appellee was successful in obtaining a judgment. This appeal is to this court from the latter judgment.

In the circuit court the original complaint was refiled and, by agreement of counsel, the pleadings were in short by consent.

It is urged here that the complaint, refiled in the circuit court fails to state a cause of action and therefore will not support a judgment. In this view we cannot concur. The sufficiency of the complaint was not tested by demurrer, and, even so, the procedure and practice in the Intermediate Civil Court of Birmingham are governed by the laws applicable to procedure and practice in the justice of the peace courts. Formal complaint is not required. Local Acts 1935, Secs. 12, 14, and 18, pp. 223 and 224; Title 13, Sec. 395, Code 1940; Bessemer Ice Delivery Co. v. Brannen, 138 Ala. 157, 35 So. 56; Hitt Lbr. Co. v. Turner, 187 Ala. 56, 65 So. 807.

As we understand the record in this case and points advanced in assignments of error and arguments in brief, the controlling question decisive of this appeal centers around the construction and interpretation of the insuring clause in the policy as it is related to the words 'sickness' and 'such sickness', found therein.

The clause is: 'This policy provides indemnity for loss due to hospital expense resulting from bodily injury effected solely through accidental means while this policy is in force which injury is the sole cause of loss (hereinafter referred to as 'such injury'), and for loss due to hospital expense caused by sickness which is contracted and begins after this policy has been maintained in force for not less than thirty (30) days and causing loss commencing while this policy is in force (hereinafter referred to as 'such sickness').'

To intelligently review the matter, it is necessary to analyze the tendencies of the evidence.

At the time of the hospitalization--the basis of this suit--Ronald Hudson was approximately ten years of age. He had always lived in the home with his parents. His father and mother testified that Ronald had actively participated in various games with his playmates. He played football, baseball, swam, rode a bicycle, and in every respect enjoyed the life of a normal boy. Up to a short time before the operation in question, they had never observed, in the use of his legs, any indication of physical handicap. He had a perfect attendance record in the public schools for the years 1942 and 1943. The parents testified, also, that the first time they noticed any trouble with the child's knees was about the first of May, 1943. This discomfort was evidenced by complaint of pain and weakness in the knee joints. A physician was promptly consulted and the operation followed on June 7th, 1943. Ronald testified to like import. The record shows that the application for the policy is dated January 21, 1943.

On direct examination, Dr. Shannon, the attending surgeon, stated: 'What I observed was that Ronald had a very small underdeveloped knee cap on both sides. They were unstable and our diagnosis was bilateral, congenital and dislocated patellae. My first observation of his knees, close observation of his knees, was in May 1943 the findings that I just stated, small under-developed knee caps; they didn't cause him to limp, I think one could say it gave him a peculiar walk. I think it is impossible to describe it any further than that. The knee caps were easily movable, to one side particularly, and they would slip too far to the outer side of the knee joint. This caused him to walk stiffly or awkwardly--but it would not be noticeable to the casual observer.'

With reference to the operation, the doctor testified 'Reconstruction surgery in simple language means Ronald's knee caps when he would extend his leg in that manner would move to the side, over to the outer side. The whole knee joint was opened up and the patella ligament attached to the shin bone was taken out--broken from the attachment and disjoined. Over here further on the medial side of the shin bone is the quadricepts tendon, and between the medial side and the lateral side an elliptical piece of the capsule was removed from the capsule and an incision made on the lateral side and an elliptical piece which had been removed was placed here, which caused the knee cap, then to pull over to the medial side, which really amounted to a snubbing up of the capsule on the medial side. I wouldn't say rebuilding, but reconstruction is a good word. I would say that Ronald afflicted...