Joseph DREARR
v.
CONNECTICUT GENERAL LIFE INSURANCE COMPANY.
Court of Appeal of Louisiana, Orleans.
*150 Gеorge Sladovich, Jr., New Orleans, for plaintiff and appellant.
Phelps, Dunbar, Marks, Claverie & Sims and J. Barnwell Phelps, New Orleans, for defendant and appellee.
McBRIDE, Judge.
Plaintiff, a United States war veteran, was confined in the Veterans' Administration Hospital at New Orleans from February 24 until June 4, 1957, for treatment of and surgery for a duodenal ulcer, and he now sues in forma pauperis the Connecticut General Life Insurance Company for $1,038.50, the amount of an alleged bill rendered by the Veterans' Administration, оn the ground said insurer, under a Certificate of Group Insurance, contracted to pay him "for the expense incurred (a) for hospital charges for bed and board and (b) for hospital charges for necessary services аnd supplies * * *."
The suit is defended on the ground plaintiff, as a qualified veteran, was entitled to free treatment at said hospital and incurred no expense whatsoever in connection with any of the services rendered him.
After a trial on the merits of the case, at which the testimony of only one witness was heard, viz., the Assistant Registrar of the local office of the Veterans' Administration, the trial court rendered judgment in favor of defendant dismissing plaintiff's demands and he has аppealed therefrom to this court.
The Assistant Registrar testified that there was submitted to plaintiff a statement of the services rendered which "is a form of a bill" in the amount of $1,038.50, but the witness admitted no effort was made to collect thе bill and there is no intention to sue the plaintiff for any indebtedness.
There was also introduced in evidence on behalf of plaintiff a letter written by a local attorney of the Veterans' Administration to plaintiff's counsel in which it is stated:
"I thоught it might be helpful to you to know that the Veterans Administration Solicitor has held in an opinion identified as No. 74-53 that if a veteran is entitled to needed hospitalization and medical care from some other source, such as an insurаnce company, he should be advised upon admission to the hospital that he cannot properly execute the `No' block in the questionnaire he is required to sign as to his ability to pay for the hospitalization. Thus in Mr. Drearr's сase since he could not properly certify that he was unable to pay for treatment the VA Hospital was not required or even permitted to furnish him free services."
We simply cannot reconcile the testimony of the witness and the quoted portion of the attorney's letter with the material provisions of the federal statute under which plaintiff was admitted to the Veterans' Hospital (then 38 U.S.C.A. § 706),[1] which reads in part as follows:
"* * * the Administrator of Veterans' Affairs is authorized under such *151 limitations as he mаy prescribe, and within the limits of existing Veterans' Administration facilities, to furnish to * * * veterans of any war * * * medical and hospital treatment for diseases or injuries: Provided, that any veteran of any war who was not dishonorably discharged, suffering from disability, disease or defect, who is in need of hospitalization or domiciliary care and is unable to defray the necessary expenses therefor (including transportation to and from the Veterans' Administration facility), shall be furnished necеssary hospitalization or domiciliary care (including transportation) in any Veterans' Administration facility, within the limitations existing in such facilities, irrespective of whether the disability, disease, or defect was due to service. The statement under oath of the applicant on such form as may be prescribed by the Administrator of Veterans' Affairs shall be accepted as sufficient evidence of inability to defray necessary expenses * * *."
A most cursory reading оf the statute is sufficient to convince anyone that as a veteran plaintiff, upon admission to the hospital, was entitled to free care and treatment for his ailment if he made the required statement under oath on the form prescribed by the Administrator setting forth his inability to defray necessary expenses. If his financial status was such that he could not subscribe to such oath, then the plaintiff veteran did not possess eligibility for admission in the first place.
The statute was рassed upon in several cases decided by federal courts on the question whether a veteran can be charged for services rendered in a veterans' facility.
An almost identical situation as exists here is to be found in Unitеd States v. St. Paul Mercury Indemnity Company, 8 Cir.,
"The insurer refused to recognize the purported charges as `expenses actually incurred by the Insured', within the terms of the policy, upon the grounds that the insured had sоught and qualified for admission, under 38 U.S.C.A. § 706, as a veteran entitled to free care and treatment for his ailment; that in this situation the Veterans' Administration was without authority under the statute to make any charge against him for the care and treatmеnt furnished him; that any charge attempted to be made would therefore not constitute legally an obligation against him; that it could accordingly not be claimed to represent `expenses actually incurred by the Insured'; that the insurеd himself thus would be without any recovery right upon the policy for this care and treatment; and that necessarily in these circumstances the insurer equally could have no liability to the Veterans' Administration as assignee of the insured's rights."
After thоroughly considering the statute and regulations thereunder, the court concluded that the government's claim should be dismissed. The court further said:
"`Incur emphasizes the idea of liability * * *'. Webster's New International Dictionary. 1. Bouv.Law Dict., Rawle's Third Revision, p. 1531 similarly points to this inherency in its definition of the term incur: `To have liabilities thrust upon one by act or operation of law * * *'. Also, there are examples in specific legal situations, where it has been held that a thing for which there еxists no obligation to pay, either express or implied, cannot in law be claimed to constitute an `expense incurred'. See e. g. Stern-Slegman-Prins *152 Co. v. Commissioner, 8 Cir.,79 F.2d 289 ; Bauer Bros. Co. v. Commissioner, 6 Cir.,46 F.2d 874 .
"What has been said seems to us sufficient to demonstrate the lack of any right on thе part of the insured, and so also on the part of the Administrator, to recover on the policy for the care and treatment furnished to the veteran, under the provisions of § 706. The summary of the situation made by the trial court may be repeated: `The court is impressed with the unreality of the position that Kinnier (the insured) has incurred any expense whose payment by him to plaintiff was ever demanded, insisted upon or even expected by plaintiff. The claim оf any debt on his part for that expense is a sham or pretense. It lacks that quality of "actuality" which, the policy declares, must characterize the "incurred expense" to support a recovery by Kinnier from defendаnt.'
"Details of arguments, mostly as to the broad powers given the Administrator in respect to veterans' affairs, have been made in the Administrator's brief, which we do not deem it necessary here to discuss. They were urged before the trial сourt and have been formally answered in the court's reported opinion, D.C.,133 F.Supp. 726 , which is readily available. We approve the answers made and the reasons on which they were predicated. But standing out controllingly in the situatiоn is the fact, emphasized above, that the insured claimed, qualified himself to receive, and accepted, the care furnished him, as a veteran's beneficence under § 706, and so was, under the statute, without any obligation to рay therefor, which could make the value of the care and treatment provided to him at the Veterans Hospital `expenses actually incurred' by him as an insured."
In United States v. Harleysville Mutual Casualty Company,
"* * * to hospitalization without charge under the provisions of 32 CFR 577.4(a) (1) (i) and of 38 CFR 17.46 (b) (1). If he be regarded as a veteran, he was entitled to such services without charge under the mandatory provisions of Title 38 U.S.C.A. § 706. There is no federal statute, or regulation having the force of law, which purports to authorize collection of expenses for such care from the veteran. * * *"
In United States v. Borth, 10 Cir.,
"* * * The determinative question presented is whether a false statement of an honorably discharged veteran of the armed services of the United States, made for the purpose of obtaining admission and free medical treatment in a Veterans' Administration hospital, creates a liability under the aforesaid statute. We agree with the trial court that it does not, and that summary proceedings were appropriate.
* * * * * *
"The application of the dеfendant sought no money or property of the Government. Its acceptance entitled him to free hospital service and medical care, but in no sense, to money or property. * * *"
Thus, the jurisprudence of the fedеral courts is that under the statutes of the United States establishing the Veterans' Administration, the Administrator of Veterans Affairs is not endowed with the right *153 or authority to collect for expenses from a veteran who is admitted to a veterans' facility for medical or hospital treatment for disease or injuries as the veteran is entitled to such services without charge, and this being so, it could not be said that the plaintiff herein incurred any expense for the services of which he was the recipient. Neither has the government any interest in any insurance coverage the veteran may have for "the expenses incurred," the testimony of the Assistant Registrar and the attorney's letter to the contrary notwithstаnding.
In Neck v. Reliance Industrial Life Ins. Co., La.App.,
"It appears that plaintiff carried another policy which protected him against expenses for hospitalization of the character rendered Mrs. Neck, and that under said policy the hospital bill of $122.50, sued for, had been paid. He is not entitled to recover this amount. He did not pay it, but it has been paid."
It also might be mеntioned that this court in two decisions, namely, Malloy v. Southern Cities Distributing Co., La.App.,
Thus the plaintiff not having incurred any expensesindeed, he could not legally do so in a veterans' facilityhas no right of recovery under the certificate of insurance issued by dеfendant.
LSA-R.S. 22:659 cited by plaintiff has no application to this case if for no other reason than it cannot have retroactive effect, it having been enacted by the Legislature in 1958.
For the reasons assigned, the judgment appealed from is affirmed.
Affirmed.
NOTES
Notes
[1] Now 38 U.S.C.A. §§ 610, 621(2), 622.