U.S. Letter Carriers Mut. Ben. Ass'n v. Sypulski

• Decision Date: 08 February 1963
• Docket Number: No. 16345,16345
• Citation: 364 S.W.2d 840
• Parties: U. S. LETTER CARRIERS MUTUAL BENEFIT ASSOCIATION, Appellant, v. Chester R. SYPULSKI et ux., Appellees
• Court: Texas Court of Appeals

Page 840

364 S.W.2d 840

U. S. LETTER CARRIERS MUTUAL BENEFIT ASSOCIATION, Appellant, v. Chester R. SYPULSKI et ux., Appellees.

No. 16345.

Court of Civil Appeals of Texas, Fort Worth

Feb. 8, 1963.

Ivy Lee Buchanan, Washington, D. C., and Ernest May, Fort Worth, for appellant.

Harris, Ball & Jones and Richard O. Jones, Arlington, for appellees.

MASSEY, Chief Justice.

Our opinion in this case, filed under date of June 29, 1962, is withdrawn and the following substituted therefor.

U. S. Letter Carriers Mutual Benefit Association affords hospital and surgical expense insurance to the families of individuals qualified to receive the same. Such is by written policy contracts issued in consideration of premiums.

Chester R. Sypulski was an individual qualified to contract with the Association for such insurance and he did so. His application therefor was dated December 9, 1959, and a certificate of insurance was issued by the Association dated January 1, 1960, affording hospital and surgical insurance to Mr. Sypulski and his wife, provided necessity therefor arose out of 'sickness * * * the cause of which originates while this certificate is in force * * * and after it has been in force for at least thirty days from its date.'

Mrs. Sypulski incurred hospital and surgical expense in the month of May, 1960. Claim was made for benefits under the policy. The claim was denied. It was the contention of the Association that the expenses so incurred arose out of sickness which originated prior to or within thirty days after January 1, 1960, the date of the certificate.

The Sypulskis filed suit against the Association, and, following a jury trial, judgment in the amount of $845.00 was entered in their favor. The Association appealed and stands as the appellant in this court.

Judgment affirmed on condition of remittitur; otherwise, reversed and remanded.

While our action was pending on the motion for rehearing filed after our first opinion was handed down, our attention was drawn to the case of Consolidated Furniture Company v. Kelly, 1962 (Tex.Civ.App., Houston), 358 S.W.2d 956. It was felt that the decision in such case conflicted with our decision in this, and that in the event the decision in the Consolidated Furniture case should be determined to be proper, the action we should take in the instant case would be to dismiss the appeal, for the amended motion for new trial did not show on its face that it was filed with permission of the trial court. We have taken note of the fact that the Supreme Court granted a writ of error in the Consolidated Furniture case on January 23, 1963.

We have no way of knowing what the ultimate action of the Supreme Court might be in the Consolidated Furniture case. We do know that there will necessarily be some delay in receiving its decision. It may be that the losing party to this appeal might prefer to file a remittitur in order to obtain an affirmance of the judgment, or to accept a reversal and retry the case, rather than file a motion for rehearing and risk further delay. Certainly we would be disposed to delay action on a motion for rehearing should delay be requested in connection with any such motion filed. We have concluded that we should presently render this opinion.

At the outset we are presented with a contention that appellant's points on appeal are predicated upon an amended motion for new trial, leave to file which was not obtained from the trial court. The Sypulskis contend that Texas Rules of Civil Procedure, rule 329b, 'District and County Court Cases', therefore inhibits consideration of the amended motion for new trial as an instrument presenting assignments of error upon which appellant is entitled to found the points of error presented in its brief. We overrule the contention. In the first place there is no affirmative showing in the record that appellant did not have leave of the court to file the amended motion for new trial, albeit there is likewise no showing that it did have leave. In such an instance, leave should be presumed. But assuming that leave to file the amended motion for new trial was not obtained, we nevertheless believe and hold that since the Sypulskis have not shown that the fact that appellant filed an amended motion for new trial has been the occasion of prejudice to them in affording appellant the right and the grounds for its points of error on appeal, the failure to obtain leave amounts to a mere irregularity and does not constitute such an omission as deprived the appellant of any right it otherwise would have had. W. C. Turnbow Petroleum Corporation v. Fulton, 1946, 145 Tex. 56, 194 S.W.2d 256; Holt v. Purviance, 1961 (Tex.Civ.App., Dallas), 347 S.W.2d 321, writ ref., n. r. e. Appellant's first point of error reads as follows: 'The insufficiency of the evidence to warrant judgment for $845.00.' If the point is germane to any ground presented in the amended motion for new trial it is to that reading as follows: 'Exclusive of the attorneys' fee, the sum adjudged exceeds benefits payable by the policy.' Although we at first believed that the point of error was not grounded upon this assignment in the amended motion for new trial, it is our present opinion that it is properly germane to and is supported by the assignment. In this conclusion we find aid in the question raised and discussed under the rather abbreviated language of the point itself. Fambrough v. Wagley, 1943, 140 Tex. 577, 169 S.W.2d 478, 482.

The instant suit is one for health and accident benefits under a policy contract. In an instance where a claimant has established company liability in a suit for health and accident insurance benefits it is ordinarily necessary for the judge of the trial court to calculate the total amount recoverable thereunder by reference to the policy (in view of the evidence and fact findings thereunder made). He must add the amounts payable becauses of hospital services, surgical expenses, medicines, etc., as to which varying amounts of insurance payments are due, in order to obtain a total figure for which judgment would be properly entered. An assignment of error asserting that said total sum so awarded is in excess of the amount properly payable under policy provisions would ordinarily embrace an assertion of a want of evidence supporting said amount so calculated. If we are correct in this statement of law then appellant's point of error properly raises the question for determination.

In appellant's brief it was written: 'Judgment was entered in his (Mr. Sypulski's) favor for $845.00; benefits, $720.00; attorneys' fee, $125.00.' The statement is unchallenged. The appellant does not complain of the award of $125.00 as attorney's fee, although there was no evidence upon the matter of reasonable attorney's fee, and, in view of the fact that trial was before a jury, the question would have been one for the jury to resolve. Indeed, no issue thereon was submitted to the jury. Award of attorney's fee was apparently made by the judge of the trial court. Counsel for appellant takes the figure of $720.00 and demonstrates from the evidence that under such proof as was offered the maximum indemnity payable under the policy was $340.00. To add $125.00 as an attorney's fee results in the amount of $465.00.

It is obvious from the Sypulskis' pleadings that they sought to recover $120.00 indemnity by reason of charges for room and board incurred because of Mrs. Sypulski's eight day confinement. They also sought to recover indemnity relative to the hospital charges for operating room, X-ray, laboratory, etc. There was no proof. The necessity of such proof, under proper complaint because of its absence, is established under the authority of Mercury Life and Health Company v. Morales, 1959 (Tex.Civ.App., San Antonio), 325 S.W.2d 459. In the instant case proper complaint was made because of the absence of proof. Apart from $125.00 in attorney's fees, of which no complaint is made, the maximum liability upon appellant extablished in the evidence was $340.00. Combining the two figures results in the...