Travelers Ins. Co. v. Dickson

• Decision Date: 18 April 1947
• Docket Number: No. 11727.,11727.
• Citation: 160 F.2d 167
• Parties: TRAVELERS INS. CO. v. DICKSON.
• Court: U.S. Court of Appeals — Fifth Circuit

160 F.2d 167 (1947)

TRAVELERS INS. CO. v. DICKSON.

No. 11727.

Circuit Court of Appeals, Fifth Circuit.

March 12, 1947.

Rehearing Denied April 18, 1947.

Jas. W. Mehaffy, of Houston, Tex., for appellant.

Maurice M. Davis and George S. King, both of Houston, Tex., for appellee.

Newton Gresham, of Houston, Tex., for Commercial Standard Insurance Company, amicus curiæ.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

On October 4, 1945, Industrial Accident Board, purportedly acting under the authority of Section 7,¹ Article 8306, Revised Civil Statutes of Texas, entered its order directing Travelers Insurance Company "to furnish and provide medical, hospital and nursing services to Arthur Dickson in the sum of $175 per week from July 28, 1945, for an indefinite period in the future not exceeding 401 consecutive weeks from November 17, 1942, unless changed by subsequent award of the Board".

On October 16, 1945, Travelers Insurance Company brought this suit to set aside and annul the award.² The grounds urged for setting it aside were: (1) that it ordered plaintiff to furnish medical services beyond the 91 days after the date of the injury which is the limit allowed by the act; (2) that the act authorizes an order for hospital services only week by week and for one week at a time, pursuant to the prior written certification and request of the attending physician, and that this had not been done; and (3) the award directs the furnishing of the services of private nurses, services not ordinarily provided by hospitals and, therefore, not authorized by the Statute under whose purported authority the order was made.

The defendant answered, and becoming cross-plaintiff, sought judgment against the plaintiff, Travelers Insurance Company, for hospital, medical and nursing services from July 28, 1945, for a period of approximately 260 weeks or so long during such period as cross-plaintiff may live.

At the conclusion of the evidence, the parties agreed that there was no controverted issue of fact to go to the jury, that the jury might be excused, and that the case should be submitted to the court on a stipulation.³

The district judge found the facts as stipulated, but he did not make a finding as to what was the undisputed testimony of the witnesses referred to in the stipulation. This was that hospital charges do not include the pay of private nurses, but such nurses are furnished and paid for by the patient and that "the services of such a nurse are not a part of the services ordinarily rendered by hospitals as a part of the hospital service". Neither did he find, as was the fact, that, but for two or three weeks in August, there had been a continuous weekly certification up to the time of the judgment. He concluded: (1) that the award of the Board was a final and appealable ruling; and (2) that the private nursing, which it was agreed was necessary for this patient, was properly allowable as a part of the hospital service authorized by the statute after four weeks. He made no conclusion of law on plaintiff's third point, the necessity for continuing weekly certification in advance, but he must have disagreed with it, for he gave judgment for hospital bills and necessary private nursing services accrued and to accrue according to the stipulations.

Here appellant urges its first and second points, that the order of the board was not final and appealable, and that the statute required weekly certifications in advance, and there was no authority in the board or the court, therefore, to award hospital services in the indefinite future. Its principal argument, though, is directed to, its main reliance is on, its third point, that the hospital services the statute authorizes after the fourth week do not include the pay of private nurses.

Its first point, that the order is not final, we think it clear, was rightly rejected by the district judge. The cases appellant cites in support are hernia cases. The cases appellee cites are controlling.⁴ The district judge was right, too, in rejecting as untenable the second point, that since the statute authorized payment for such hospitalization only upon weekly certification, the board and the court could not make any indefinite hospital award. The statute must, of course, be complied with. "It is now settled that each step in the progress of the maturity of a claim under the Workmen's Compensation Act Vernon's Ann.Civ.St. art. 8306 et seq. * * * from the time of the injury to its final adjudication is a mandatory requirement, necessary to the exercise of jurisdiction by the first and succeeding statutory agencies". American Surety Co. of New York v. Mays, Tex.Civ.App., 157 S.W.2d 444, 446. Especially is it true that where the statute is relied on for a recovery of medical, surgical or hospital services, compliance with it or a waiver of compliance must be shown, and in the absence of waiver no liability can arise except upon compliance.⁵ The compliance required, however, is not technical but substantial, and, as construed and applied by the Texas courts,⁶ the act will be given the fullest possible effect and no insubstantial failures to comply with it will defeat its full remedial application.

The record contains sufficient weekly certifications up to the judgment date, and appellant has stipulated that the conditions which would authorize, indeed require, a continuance of the weekly certifications have existed and will continue to exist for the full 401 weeks. We think it would be a sticking in the bark of form and a denial of substance to hold that in an agreed case of total and permanent hospitalization like this one, the board and the court are without authority to dispense with the formal weekly certifications to give effect to a substance solemnly agreed to by the plaintiff.

Its main contention, that the claim for private nursing services furnished and paid for by the patient as distinguished from floor nurses furnished and paid for by the hospital and included in the hospital bill are not, under the undisputed testimony, embraced within the statutory obligation which is sued on here "to furnish such additional hospital services as may be deemed necessary", is much more vigorously argued. Invoking the final clause of the section⁷ providing, as construed in Lumbermen's Reciprocal Ass'n v. Wilmoth, Tex.Com.App., 12 S.W.2d 972, that medical services beyond those ordinarily furnished by hospitals may not be required beyond the days the act fixes as a limit to the authorization of additional medical attention, appellant insists that the judgment for private nursing may not stand. It urges as significant that in Texas cases⁸ dealing with claims for hospital services the courts have approved the submission of a special issue as to whether the hospital services sued for were those ordinarily furnished in hospitals. Finally, pointing out that the statute does not provide in terms for the services of private nurses and arguing that they must be recovered if at all as medical services, appellant cites cases from other states⁹ holding that nursing is included in a statutory provision for medical services, and urges upon us as controlling the decision in the Wilmoth case, supra, holding, that under the Texas statute, medical services not ordinarily furnished by a hospital could not be recovered beyond four weeks, the statutory limit then prevailing.

Of appellant's main argument, that private nursing if recoverable as a part of hospital service is recoverable only as medical services, and, as medical services, is subject to limitation of the last sentence of the section set out in note 6, supra, it is sufficient to say that the decision of the Wilmoth case in the Court of Civil Appeals, 1 S.W.2d 415, has foreclosed the argument for us. There the Court of Civil Appeals affirmed the judgment of the trial court in favor of four private nurses and for medical services rendered the claimant by physicians, both claims extending far beyond the four weeks' time then limited in the statute for medical services. Certiorari was applied for only as to the medical services rendered by the physicians, and the Supreme Court, in 12 S.W.2d 972, determined that these could not be recovered beyond the first four weeks. We are thus bound by the two decisions to distinguish as to recoverability between private nursing services and medical services furnished after four weeks.

The opinion of the Court of Civil Appeals contains no findings as to whether there was an issue of fact made and evidence offered upon it as to whether the private nursing in question was ordinarily furnished by the hospital as a part of the service. The suit, however, was brought not by or for the hospital but by the private nurses in their own right.

If we could consider the question presented on the evidence here as one of original inquiry, we would be much impressed with the force of appellant's general argument that the hospital services recoverable under the statute ought to be held not to include the services of the private nurses here, when it is undisputed that these services were not furnished by, or for the account of, the hospital,¹⁰ but were procured and paid for by the patient on his own account. For it seems reasonable to assume that in providing for the payment of additional hospital services, the legislature meant what it said that it was not intended to include services rendered the patient which were not truly hospital services. It is, therefore, a matter of regret that this question which, though not open to our independent examination, has not been foreclosed by an authoritative decision of the Texas Supreme Court, has come up for decision in a court which, without authority to examine the question for itself, is compelled, under what we regard as the at present prevailing opinion of the Supreme Court of the United States, to affirm the judgment under the leading, if not...