*1 1006
uрon
notice,
like motion and
disre-
material
judgment
issue. The
does not
gard any Special
Jury Finding
Issue
recite that
a motion for
was filed
support
no
appellee.
has
in the evidence.”
It does not recite that it
was entered
hearing
appellee’s
after a
In the case
Traders & General
Ins.
motion for judgment. Therе is
finding
no
Heath, Tex.Civ.App.,
Co. v.
197 S.W.2d
by the court
jury’s finding
130, 134, the court said:
“
special
answer to
issue 3 was immaterial.
* * *
explicit.
Rule 301 is
Therefore,
appellee
since the
did not file
* * *
appears
prescrib
a motion
disregard
finding
to this
ed motion
reasonable
notice
special
given
issue and notice was not
jurisdictional
exerсise of the
appellant,
required
301,
by Rule
power by
disregard
jury
the court
appellant’s
sustain
point
of error. The
finding.
improper
It was
to render
judgment of the trial court
reversed
upon special
issues
14
Nos.
Whitaker,
the cause is remanded.
v.
Jinks
15
finding
in the face of the
814;
Tex.Civ.App., 195 S.W.2d
Hines v.
response
special issue 13.
American
Pаrks,
289,
128 Tex.
judgment must therefore be reversed
and the cause remanded for a new
trial.”
In jury this case the found in answer to
special issues 1 2 that it not the parties appellee
intention County property hold the Andrews and PREFERRED LIFE INS. CO. v. STEPHEN property the Lubbock for himself and his VILLE HOSPITAL et al. brother as co-tenants. But in answer to 2993. No. special jury issue 3 the found that when Appeals Court of Civil Texas. Eastland. appellee wrote the 1934 to Carrie lettef 20, Feb. Robinson he intended to assure her that he holding County property the Andrews Rebearing 20, Denied March property and the Lubbock for Carrie Robinson and himself co-tenants.
Our courts have held that an
express trust be declared a writing
made after legal title has vested in the Pruitt, Tex.Civ.App.
trustee. Wallace v. 1 728; Tate, 20 S.W. Frint v. Tex.Civ. 737;
App., Moseley Fikes, 162 S.W.2d v.
Tex.Civ.App., 126 appel S.W.2d 589. The language
lant contends that the in the 1934 express
letter was sufficient to create Stafford, Tex.Civ.App.,
trust. Pottorff 539; Colton, Colton v. S.W.2d 127 U.S.
300, 8 S.Ct.
record does reveal that he acknowledgment appel written to the
this April 3, 1947, predecessor until
lant’s when appellant’s attorneys
he wrote that “from considering I am Mrs. Kurtz
now out ** *enough elаpsed time has not title property. a limitation
mature In special opinion issue
our No. was a *2 Cervin, Barron, Jr., B. S. Alto W. Jack Dallas,
Titus, Thompson, R. Stephen- L. ville, appellant. Favors, Stephenville, appel-
Ennis lees.
COLLINGS, Justice. brought Stephenville This suit composed partnership, Hospital, a of Dr. Terrell, Vance Terrell and Dr. Dr. C. J. Terrell, Life In- against Bruce Preferred “If the insured or member of Family Company, corpоration, Group necessarily surance shall policy. Before the confined health accident recognized were, cause, pleadings trial as a amended Resident on account of *3 injury sickness, Company filed in at law surviving which the heirs or the pay Aylor joined additional the (or Laura Lou were Insured the as partiеs plaintiff. plaintiffs alleged by. that if authorized so) the Insured to do Company policy hospital the for the following was the issued items of ex- pense 19, 1951; Aylor February actually Laura Lou incurred not to ex- February Stephen- ceed the that on the amounts stated below: provisions Hospital, ville relying.upon the Hospital Room, “A. inсluding policy, accepted of the insurance the said and general care, meals nursing not to Aylor extended Laura Lou a and per day, exceed period for the to her the during its services and facilities the that Insured or member time of her illness and until the Family Group shall be confined there May 15, 1952; Mary her death on in but-not to exceed One Hundred Aylor, writing, Lou authorized the hos- Days as a result one accident pital to collect for her all due benefits un- or sickness. der the and policy authorized the insurance “B. Room, Use of Operating the; company pay the costs of benefits regular and charge customary for such alleged during was services. the time deceased confined in the hos- “C. Use 'Cystoscopic Room, óf pital she was furnished and surgical hos- regular and customary charge for such pital covered in policy services. $1,222.60; phy- amount of that written “D. Anesthesia, including fee of report sician’s and of loss was fur- anesthetist used, and materials not to hosрital nished to the insurance Twenty exceed ($20.00) Dollars for a company and written demands made were respiratory anesthetic, Ten Dollars. payment for the of such services and ($10.00) spinal for a anesthetic or charges but that the company has failed Five Dollars ($5.00) a local for anes- prayed and refused sаme. Plaintiff thetic. judgment against for Service, Laboratory “E. not to ex- the terms alleged due under ceed Seven 'Fifty Dollars and Cents $1,222.60, policy in the sum of ($7.50). per statutory penalty cent twelve X-ray Photographs, “F. not to ex-' attorneys’ $146.71, fees sum ceed Ten ($10.00) Dollars but not to before A trial was had and costs. X-ray X-ray include Dental or used entered jury judgment court without and as treatment. prayed. Preferred Life plaintiffs Hypodermics (injection “G. Company ap- this or nar- brought Insurance has pain) cotics the relief peal. reg- customary ular and charge for such by appellant company that urged services. $1,222.60 for the the sum of judgment in (other “H. Medicines Peni- thаn. expenses surgical is excessive hospital and Streptomycin, cillin not to exceed policy. The terms and violates .the Ten Dollars ($10.00). company insured provided policy “I. Penicillin Streptomycin, pay to her Aylor would Lou Laura to exceed Fifteen Dollars ($15.00.) benefits; con- provided for certain Surgical Dressings sup- expenses “J. specified ac- other finement plies, including splints, casts and while the insured tually incurred customary regular charge. portion force. inwas policy tests, Basal expenses and “K. Metabolism relating to us- policy n customary charge. ual and is as follows: benefits item. for each such limit of usual Electrocardiograms, “L. expense proved items certain charge. customary policy in excess of limit for such items including use Oxygen, “M. granted' As therefor. equipment tent or other oxygen 'by appellant, contended regular oxygen, the administering ex- be reduced the extent should customary charge. " appellees’ cess. We cаnnot with agree Transfusions, regu- “N. Blood questioned contention that and exces- to ex- customary charge, not lar proved sive items were to be within ($25.00). Twenty Five Dollars ceed policy by testimony of limits Hydrotherapy, the usual “O. witness who she com- stated *4 customary charge. pared pro- charges with benefits policy in vided. and thаi. the usual1 Physiotherapy, “P. policy. were in Nor can with - acco'r.d customary charge. ’ agree “hypodermics,” that the item Lung, or other “Q. of Iron Use which, was and defined in the described respiration, not equipment for artificial policy “injection being for the re- Fifty Two Hundred to exceed pain” interpreted lief óf can include be. to ($250.00).” Dollars glucose. interpretation of the terms statements policy The itemized by of the is for determination by in evidence introduced medical services sirup, court. Glucose defined as “corn is appellees as a basis liquid" by and relied sweet sirupy made the incom- charges.: following starch; plete hydrolysis shоws a name some- .of injection times used for dextrose.” The “Room, Nursing Board glucose into veins is well known to be days at (89 Service $8.00 purpose nourishment and not day. per $712.00 pain: for the relief of (respiratory an- Anesthesia by appellees It further contended that esthetic) . 20.00 appellant company pleadings submittеd no Delivery Operating or Room 20.00 proof in trial court that the amount Laboratory . 25.00 policy exceeded sought recovered and Intravenous Medicines limitations, and that the matter has there solutions. 57.60 urged fore waived and cannot now Blood Transfusions. 25.00 company. support by the In of this con Surgery . 75.00 tention, appеllees rely upon provisions Surgical Dressings . 15.00 of Rule of Civil Pro Texas Rules Penicillin ..... 4.00 cedure, portion of which the relevant is as 339.00 Glucose. follows: 5.00.” Alcodex . on an is, “Where suit insurance urged by appellants that charge against contract insures which certain laboratory services should be $25 hazards, general contains othеr but by comply reduced with to $17.50 $7.50 general provisions limiting such lia- limitation of such liability for services as bility, party suing on such contract provided policy charges' and that the required allege never 'be shall for “medicines and intravenous not due to a the loss was risk cause .or solutions,” for Glucose and $339 $5 exceptions coming within Alcodex, amounting $401.60, a total contract, specified in the nor shall the should be reduced the sum of $391.60 be allowed to raise such insurer issue comply provided with the limitation specifically allege it unless shall policy by the for medicines. the loss was due to .a cause risk is, particular point opinion, exception cоming well policy liability; provided specified general taken. The certain items expense against nothing which were insured herein shall be construed to urged required by the burden of that no demand as change appellant. statute was made Relevant issue as it exists.” now to the matter under consideration is the burden testimony Secretary This establishing right their to recover. who appellant stated that she sent to the in they did evidence introducing mail, reports by physi- attending the two limited policy surance which its terms complete cians with itemized statements recovery specific amounts for performed. Copies of these pro out and designatеd services as set reports were introduced in evidence as liability limitation of vided therein. Such plaintiff’s exhibits one and two. The fol- exception “general is not an liabil lowing authorization was set out ity” provided provisions limiting by “other reports: back each of the liability” general is inherent in “Authorization Release provisions policy which define Physician the maximum in the first instance. Surgeon was, therefore, part The limitation (Not to be used Workmen’s inseparable “general from the liabil Compensation cases) ity” 94, supra. as referred to Rule hereby “I authorize Preferred Life *5 exception was not such a limitation of Company pay directly Insurаnce to to general to the as referred to Stephenville Hospital and directly to prohibited rule which the insurer was from me, Dr. C. Terrell all benefits due if J. urging special allegations. without Alamo any, by reason of services described Richardson, Tex.Civ.App., Cas. Co. v. 235 rendered, in the statements pro- and as Ref., (Writ N.R.E.). S.W.2d 726 vided for in contrаct No. P68-5346 3.62, Statutes, Vernon’s Texas Civil Art. with aforementioned insurance com- Code, provides: Insurance pany. I completely them release to “In all cases where a loss occurs payment extent of the made. I company, and the life insurance or ac- pay, Stephenville, will Texas, at for company, cident insurance or life and . all such charges incurred or for all accident, accident, life, health and in excess of whatever company health and accident liable paid sums 'by be the insurance pay therefor shall fail to the same company above-mentioned. thirty days within after demand there- “Furthermore, I instruct the above- for, company shall be liable to named and Dr. C. Terrell J: policy, pay the holder of such in addi- give to to the insuring company named loss, tion to the amount of the twelve above all information which neces- is (12%) per damages cent on the sary my determination of just together amount such loss "with of rea- benеfits. attorney prose- fees for the sonable “Date: 2/16/52 cution and collection of such loss. (Signed) Aylor Mrs. Lou attorney be taxed as Such fee shall a “Stephenville, Texas.” part of the costs in case. The It has been held that the above fixing in such fees shall Court take penal cited statute is must be strictly consideration аll benefits into construed. Metropolitian Life Ins. Co. v. prosecution incident to the insured Wann, 400, 130 Tex. 109 470, S.W.2d 115 suit, and to on accrued accrue ac- 1301; A.L.R. First Texas Prudential Ins. policy.” count of such Long, Co. v. Tex.Com.App., 46 S.W.2d by appellant contended It granting judgment court erred statutory penalty portion as sum of for The exhibits relied thirty days failurе to after de- appellants constitute a demand attorneys designated the sum as “report, mand and as on hospital action of the and that the court in services” and fees so under the heading “hospital wholly charges” purported without doing is basis law. to itemize the charges
ion requested. letter An examination when On сertain oc- made for such services. requested instruments casions authorization of the exhibits indicates were, denominated, rather than wire clients. This advo- reports form Hospital held cated by Texas Associa- It has payment.- demands (cid:127) death, tion injury or and the Private Hos- filing Clinic and suit, pital loss, accompanied by Association Texas for use of filing when even their members.” under does not amount to demand Co. v. Life Insurance statute. Mutual designated On the back of the sheet 406; 522, Ford, Wash 131 S.W. Tex. “Report Hospital on Services” was set out Williams, Fidelity v. ington Nat. Ins. Co. “Authorization Release Hos- 1093; Tex.Com.App., National 49 S.W.2d pital Physician Surgeon,” Dove, Tex. Life Accident Ins. & Co. opinion. heretofore shown in our main 257, affirmed Civ.App., 167 S.W.2d report (Exhibit The first was dated One) Tex. 174 S.W.2d secretary and sent appellant April insurance- stated, For the reasons purported 1952 and to cover the by eliminating court the trial is reformed patient’9 from the date of the admission statutory and attor- recovery penalty the hospital report. the date of the recovery against neys by reducing fees The authorization on the back sheet appellant As so re- to the sum $813.50. “Report designated Services” formed, affirmed. purported signed Rehearing. On Motion 16, 1952, February the date of her admis- sion to the motion for re- urge striking from the heаring authorization, that we erred opinion, does *6 penalty attorney’s statutory and not amount to a demand when considered one that their exhibits holding connection with remaining portion fees and the reports than demands part. rather which it and were of Exhibit One of is a The two exhibits was patient the payment. Each did authorize paper, one des- composed of two sheets the or the doctor benefits which Hospital and “Report patient Services” be the might on due there ignated was no Report.” Physician’s other, “Attending request payment. demand or the Both printed in the nature of designated were sheets the Exhibit are sheets had filled forms, language of which blanks referred to the used the therein Reports. specifically Each as in, designated giving stated information. Preferred the used as either reports addressed to blanks be “first” was Texas, Dallas, “preliminary” reports Company, or also as Life Insurance name, pol- report. “final” insurance Exhibit One does in- her nоt patient’s gave the hospital, preliminary final,, dicate it number, whether was name of icy patient but does diagnosis of the show that was physician, a still in attending illness, treatment adminis- On basis of the authori- patient’s period original opinion ties cited report, which tered, date of report, penal and under the hold that the stаtute is time covered construed, strictly conclude “Hospital Charges” an item- Ex- listed heading One, whole, hibit when considered as a performed ized statement does not constitute a demand. At bottom of each therefor. printed report was the fol- sheet of report (Exhibit The second Two) lowing : 15, 1952, May dated covered the in report the first tervening between be can utilized for both blank “This patient May 15, death, of the report ‘Preliminary’ 1952. It ‘First’' questions substance similar was form Report. Any Ex ‘Final’ second, except that One report hibit first occasion answered typed following thereon the report. had the -final These notation': completed covering period filed earlier amplified by reports “Claim from reports will be by ap- 2-16-52 It is urged to 3-29-52.”
pellees that this notation demonstrates- presented report a claim.
Even if above it should be held that connec-
described considered in notation remaining portion of Exhibit
tion with the demand
Two was sufficient constitute a payment, proper de- there was still no made-by report
mand. The second
Seсretary Hospital death after the patient. in most fa- Considered its appellees, light-to
vorable the “authoriza- Physi-
tion release Surgeon”
cian and could be no more than power attorney, assign- and not ment, death expired at and it the. the doctor
patient. demand power make a right or no death of company after the the insurance belonged then the claim because de- at surviving heirs law
ceased. rehearing is overruled.
The motion for *7 CREEK CO., et al. BLUFF Inc.
WHITSON CO., Inc. et al. OIL
No. Appeals of Texas. of Civil
Court Worth. Fort 13, 1953.
March April
Rehearing Denied