Coffey v. Northwestern Hospital Ass'n

183 P. 762 | Or. | 1919

Lead Opinion

McBRIDE, C. J.

1. Plaintiff’s evidence tended to show that she was taken sick, as alleged in the complaint, and that she mailed a card to defendant, as alleged. There is a strong presumption that a letter so marked was received, and whether this presumption was overcome by the evidence of defendant was a question of fact for the jury. The receipt of the letter of November 15th is admitted by defendant, in which the condition of the plaintiff was fully described, and there is no question raised in the testimony that it was not substantially a correct statement of her condition.

2. The reply was substantially a refusal to treat her under the contract for the disease under which she was suffering, upon the ground that it was chronic and therefore not within the contract. It said in effect, “Tour disease is chronic and not subject to treatment under our contract, but come down and if we find it is not chronic we will treat you.” No person in plaintiff’s then condition .would have gone after having been informed that if she had the sickness which she claimed to have had she would not be treated. Defendant claimed, then, claimed at the trial, and claims here that plaintiff was afflicted with a chronic disease which it was not required to treat, and it is plain that if she had gone to defendant after receiving this letter it would have declined to treat her. If the trouble was, in fact, a chronic one, defendant was justified; otherwise, its refusal was a breach of the contract which renders it liable in damages.

3. The evidence introduced as to the disease from which plaintiff was suffering indicates that in 1910 plaintiff suffered from prolapsus uteri, and that as a result of an operation she was completely cured of that trouble and was in sound health when she became a party to the contract with defendant; that this condition continued for about two and a half years; that later, when plaintiff did hard work or lifting, she had temporary prolapsus, hut that her condition always becomes normal upon ceasing such work. The effect of plaintiff’s testimony is, that she has had frequent attacks or recurrences of the trouble at intervals, produced by overwork or lifting, but that the trouble is not continuous. The evidence on behalf of plaintiff indicates that she is much more susceptible to attacks of this character than the ordinary woman, but this fact alone does not render the disease chronic.

It is a fact well known even to laymen that there are persons whose bones are so brittle from disease or malnutrition, that they are broken by blows or falls which would do no particular injury to a person whose bones are normal; but it does not follow that such persons have chronic broken arms or legs. Some persons are poisoned by the slightest contact with poison ivy while others are not at all affected by it; but it does not follow that the susceptible person is afflicted with chronic ivy poisoning.

It appears here that plaintiff’s first attack was cured in three weeks by an operation; that she remained in good health for over two years, and that subsequent attacks were cured by avoiding the causes which produced them. A chronic disease is one of long duration or characterized by slowly progressive symptoms: Section 2, Words & Phrases, “Chronic.” Whether plaintiff’s ailment was chronic was a question of fact for the jury, who were instructed in substance that the burden of proof was upon the plaintiff to show that she was not suffering from a chronic ailment.

4. The fact that plaintiff did not pay her assessment due on November 15th is immaterial, as Article X of the contract provides that “No cancellation of Membership shall be made while the member is sick, or under treatment by the association, for any reasons.”

5. It is urged the court erred in not giving the following instruction requested by defendant:

“You are further instructed that under the terms and conditions of the contract herein the defendant was not bound to render any services to the plaintiff outside of the City of Portland, Multnomah County, Oregon.”

It is a forced construction of the contract to say that it requires defendant to render services in the City of Portland only. Article I of the contract stipulates for furnishing hospital services “where provided, ” by which we understand that such services were to be rendered only where the defendant had provided hospitals; but Article II provides for medical or surgical services by any one of the physicians of the association staff, and does not limit such services to a place where hospitals have been provided. Three things are promised the members of the association: (1) Free hospital service where a hospital is provided; (2) free medical treatment without any specification as to where it is to be rendered, and (3) free surgical treatment under the same conditions. In addition to this defendant had practically refused to treat plaintiff for prolapsus anywhere, and had unlawfully canceled its contract with her while she was sick, so it is in ,no position to claim immunity because plaintiff did not come to Portland to receive their refusal to treat her. Plaintiff’s final demand was for treatment in Portland, coupled with an offer to come to Portland to be treated. Defendant’s response was a refusal to treat her in Portland for the disease from which she was suffering, coupled with a crafty invitation to come and he examined and treated, in ease defendant found that she was afflicted with some different ailment than that from which she claimed to be suffering; and with the assumption that if she were suffering from the ailment described in her communication, she would not be entitled to the treatment stipulated in the contract.

The judgment of the Circuit Court is affirmed.

Affirmed.

Burnett, Benson and Haréis, JJ., concur.

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Rehearing

Denied April 27, 1920.

Petition for Rehearing.

(189 Pac. 407.)

This is a petition for rehearing.

It is contended that the court failed to pass upon the question of the measure of damages argued in defendant’s original brief, and in an able and plausible brief accompanying the petition for rehearing, defendant makes the point that a mere breach of the contract set forth in the complaint, even if unjustifiable, would not of itself authorize plaintiff to recover for physical pain and mental anguish, because, in addition to showing such breach, she would be required to show that she suffered physical pain as a consequence thereof, and not in consequence of the disease.

Defendant’s argument is best stated in the following excerpts from the brief on petition for rehearing:

“I want to point out to the court that nowhere in the complaint is there an allegation to that effect and there is not one scintilla of evidence upon the point. Mrs. Coffey testified that she , had suffered great pain, but it is clear that she suffered this pain, not because of the breach of the contract, but because of the trouble with which she was afflicted. No physician was placed on the stand to show that it was possible in any way to allay her suffering. In fact, it is clear from the testimony of Dr. Leonard that there was nothing that would have relieved the plaintiff outside of an operation, and that rest and lying in bed was the only treatment that could otherwise be administered.

“Assuming, further, for the sake of argument that the plaintiff has shown that the defendant breached the contract, the defendant should not, and could not legally be asked to respond in damages beyond an amount naturally flowing from the breach, and which is justified by the evidence. To permit a recovery on any other ground is a violation of all the established rules of law and evidence, and has the effect to judicially outlaw the appellant. We can see no reason why any different rule should apply in this case than in any other similar contract action.”

Rehearing Denied.

Mr. C. D. Christensen, for the petition.

Mr. William P. Lord, contra.

McBRIDE, C. J.

It may be conceded, for the purposes of this case, that in the absence of any evidence tending to show that plaintiff’s sufferings were prolonged by defendant’s breach of its contract, she would not be permitted to recover for physical pain resulting as a necessary consequence of the disease, irrespective of such breach. In other words, if plaintiff suffered to no greater extent than she would, had defendant promptly treated her, then she can recover nothing for snch physical pain. Bnt that is not this case.

In spite of a very rigorous rule adopted by the court, in excluding testimony in regard to plaintiff’s treatment in Eugene, there is evidence tending to show that upon being taken sick she promptly notified defendant by postal card, and received no answer; that thereupon she called in a local physician, who gave her two or three cursory treatments, found her unable to pay for said treatments, and turned her over to the county physician, who, after a treatment or two, discontinued his calls, for reasons which the court refused to permit to be shown, but which may reasonably be attributed to the fact that she had been in Lane County but six weeks and was therefore not a proper pauper charge upon the county. During this time she was asking the defendant for the treatment which she was entitled to but was not receiving. When in February, 1916, she managed in some way to get to Portland and obtain medical assistance, she was speedily relieved of much of her pain and suffering and substantially cured of her trouble.

6, 7. These facts were evidence from which a jury might infer, and almost necessarily would infer, that a prompt compliance by the association with the request of plaintiff for treatment would have saved her unnecessary suffering. So there is evidence that plaintiff suffered physical pain by reason of the nonperformance by defendant of its contract. And where this exists, a recovery for mental anguish concomitant with the physical pain suffered, is a proper element of plaintiff’s damages.

The case cited by defendant’s counsel, Adams v. Brosius, 69 Or. 513 (139 Pac. 729, 51 L. R. A. (N. S.) 36), does not even remotely sustain defendant’s con-tension. In that case the plaintiff Adams had called upon defendant Brosins to attend upon his wife, who was suffering from a hemorrhage^ caused by a miscarriage, and was in a dangerous condition. Brosius accepted the call, and started on his journey to the home of the sick woman, but stopped on the way and failed to keep the engagement. The woman died from the hemorrhage, and her husband brought suit against the physician for damages, alleging, as the sole ground of recovery, the anguish caused by the failure of the defendant to attend as he had promised. There was no allegation that Mrs. Adams’ death was caused by failure of the physician to attend, or that by his failure to do so her life was shortened or her sufferings were increased; the only injury complained of being the mental anguish of the husband caused by the breach of the physician’s contract.

The case was reduced down to the proposition as to whether one could recover damages for mental anguish, caused by viewing the physical suffering of another, where such person had himself suffered no physical pain or damage. We held that he could not, but Justice McNary added, by way of dictum :

“Had death not claimed her for its victim, plaintiff’s wife possibly could have maintained an action against defendant for the mental anguish and physical pain, if any, which she sustained as a result of the broken contract, but for plaintiff no action is maintainable for purely mental distress.”

This indicates that there was in the judicial mind in that case the distinction which we have endeavored to make here, between damages for an act causing mental anguish only, and one where such mental suffering is accompanied by physical pain.

In cases of this character the basis of the action is a contract, but an action for the breach of such

contract sounds in tort, and authorities are not lacking to the effect that in such actions damages for mental suffering are recoverabe. Galveston etc. R. R. Co. v. Rubio (Tex. Civ. App.), 65 S. W. 1126, is a case exactly in point with the one at bar. See, also, Aaron v. Ward, 203 N. Y. 351 (96 N. E. 736, 38 L. R. A. (N. S.) 204); Austro-American S. S. Co. v. Thomas, 248 Fed. 231, L. R. A. 1918D, 873, 160 C. C. A. 309).

Upon other features of defendant’s contention in this case and holding adversely thereto, see McDaniel v. United Rys. Co., 165 Mo. App. 678 (148 S. W. 464).

The general principle is well summed up in 3 Sutherland on Damages, Section 980, in the following language:

‘ ‘ The best reconsideration we have been able to give the subject of damages for mental injury, that reconsideration being had with the result of the cases decided since the original edition of this work was prepared in mind, confirms the conclusion then arrived at — given a cause of action on contract or for a tort, the allowance of damages on that account depends on the same rule by which they are allowed for any other resulting injury, namely, in an action ex contractu the injury to the feelings must be such as was presumably contemplated by the parties as likely to occur at the time it was made, if a breach resulted; and in an action of tort it must be the natural and proximate consequence of the wrong. In both cases the act or omission which constitutes the cause of action must in some way result in a deprivation of comfort, produce annoyance, personal inconvenience, wound the sensibilities by indignity or something like it, as distinguished from a sense of disappointment on being denied money due or a commodity for business purposes. The objections to the allowance of compensation for such injury are largely based upon reluctance to opening to juries an inquiry as to an indefinite wrong for which there is no precise measure of reparation, thus making possible an award due to passion and prejudice. But when injury of this character is contemplated as likely to result from the breach of a contract the parties may, when they make their agreement, liquidate the damages; if they do not, the party at fault is not entitled to immunity merely because there is danger that a jury may require bim to pay too much. This consideration is still more potent in tort actions.”

8. We are of the opinion that the damages suffered here may be fairly said to have been within the contemplation of the parties when the contract was executed.

It is a well-known fact that as a rule these contracts are not entered into by the wealthy or well-to-do class of the community, but by that poorer class who seek thereby to provide themselves with medical or surgical assistance in case of sickness or accident, Without resort to humiliating public or private charity. That a resort to such charity might result from a failure of defendant to keep its contract, was a contingency which would naturally be within the contemplation of both parties. That being compelled to resort to it for the meager assistance it usually affords Would be a source of humiliation and mental anguish to a woman of average sensibilities, who for years had paid a monthly premium to avoid such a contingency, goes without saying.

The verdict and judgment were legally and morally right, and the former opinion is adhered to and the petition for rehearing denied.

Affirmed. Rehearing Denied.

Burnett, Harris and Benson, JJ., concur.