Franklin Casualty Insurance Company v. Jones , 1961 Okla. LEXIS 575 ( 1961 )

BERRY, Justice

(dissenting).

I am unable to agree with the majority opinion.

At all times in controversy, Dr. Jones and Julia Wagner were residents of Seminole County, Oklahoma, and insurer’s principal place of business was in Tulsa County, Oklahoma.

Following the accident, an agent of insurer asked Julia Wagner to “see” a doctor in Oklahoma City. She advised the agent that it would be inconvenient for her to do so and inquired if it would be agreeable for her to “see” a doctor who practiced in Seminole. The agent agreed and she called at the office of Dr. Jones in Seminole who treated her for several months. Insurer knew that Dr. Jones was treating Julia Wagner, and in fact requested and obtained a medical report from Dr. Jones.

Julia Wagner was made a party below. In the pleading that she filed she asserted in substance that under the following quoted conditions of the insurance contract insurer became obligated to pay the charges that Dr. Jones made for treating her and joined in Dr. Jones’ prayer for recovery against insurer :

"Coverage C — Automobile Medical Payments. To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services;

“Division 1. To or for each person who sustains bodily injury, sickness ©r disease, caused by accident, while in or upon or while entering into or alighting from the automobile, provided the automobile is being used by the .named insured or his spouse if a resident of the same household, or with the permission of either; * * * ”.

To me, the quoted provisions of the contract did not serve to create so-called indemnity insurance, and to the contrary served to create accident insurance. It was wholly unnecessary for Julia Wagner to obtain a judgment against the owner or operator of the automobile in which she was riding at the time she was injured before she could maintain an action against insured as an insured under said provisions. In brief, her right of action against insurer was completely independent of liability on the part of the owner or driver of the automobile. Insurer in fact admits that Julia Wagner had a cause of action against it. In its brief, insurer states that “Julia Wagner, under proper allegations and proof, could have a cause of action against” it.

At p. 312, Sec. 4896, Vol. 8, Appleman on Insurance Law and Practice, this is said:

Many automobile liability policies now contain the so-called medical in-dorsement. Under this provision, any passenger or occupant of the insured’s car who is injured in accident may recover medical expenses up to a stipulated amount, usually $500 per person. Since such recovery is completely independent of liability on the part of the insured, insurance under the medical indorsement clause is closely akin to a personal accident policy. Many companies, in view of their experience with the medical indorsement covering occupants of the insured automobile, have now extended the coverage of such clause to include the insured himself.”

In Severson v. Milwaukee Automobile Insurance Company, 265 Wis. 488, 61 N.W.2d 872, 875, 42 A.L.R.2d 976, the court had under direct consideration the right of a passenger who was injured in an insured automobile to recover under the medical in-dorsement provision of a public liability insurance contract. In sustaining said right, this was said:

“ * * * Coverage K is a separate agreement to pay under any circumstances, and is not confined to liability because of the negligent operation of the automobile. Had the defendant paid the injured person or the doctor or organization rendering the services, that would have been a payment under Coverage K and there could not be a second recovery under the medical payments provision of the policy.”

See also Distefano v. Delta Fire & Cas. Co., La.App., 98 So.2d 310.

As to Julia Wagner, insurer defends upon the grounds that she could only maintain an action against it in the county in which she was injured or in the county of insurer’s principal place of business. I am unable to agree.

A cause of action is said to arise in that jurisdiction where the act is done which gives the plaintiff cause to complain. It was in Seminole County that the medical services were rendered and Julia Wagner’s and Dr. Jones’ cause to complain there arose upon insurer’s failing and refusing to pay the charges made for said services. Summons was therefore properly issued from Seminole County and served upon insurer in Tulsa County. See Oklahoma Electric Supply Co. v. Elsing, 186 Okl. 122, 96 P.2d 530, and Harlow Publ. Co. v. Pennel & Harrison, 179 Okl. 360, 65 P.2d 1206.

In Oklahoma Fire Insur. Co. v. Kimple, 57 Okl. 398, 156 P. 300, 157 P. 317, this was said in the first paragraph of the syllabus:

“By virtue of section 4674, Harris-Day Code, R.L.1910 [12 O.S.1951 § 134], an action against a domestic insurance company may be brought in the county where the cause of action or some part thereof arose.”

We said this in the body of the opinion of the last-cited case :

“In the case of Jackson v. Spittal, 5 L.R.C., p. 542, it is said:

“ 'A cause of action was said to arise in that jurisdiction where the act is done which gives the plaintiff his cause of complaint.' ”

In the first paragraph of the syllabus to Guaranty State Bank of Tishomingo v. First Nat. Bank of Ardmore, 127 Okl. 292, 260 P. 508, 510, we said that “A cause of action for the dishonor and protest of a draft arises in the county where such draft is dishonored and protested, and not in the county where such draft is drawn.”

In the last-cited case, the plaintiff had no cause to complain until the draft was dishonored. In the instant cause, Julia Wagner and Dr. Jones had no cause to complain until insurer refused to pay for medical services rendered by Dr. Jones. So here, as there, venue was in the county in which the obligation arose that the obligor failed to satisfy.

An issue analogous to the issue under consideration was presented in Southern Farm Bureau Casualty Insurance Co. v. Alexander Tex.Civ.App., 326 S.W.2d 644, 647. In that case the insurance company issued an insurance contract providing in substance that it would pay a stated sum in the event insured’s death resulted directly and independently from bodily injuries received in an accident. The insured was injured in Harrison County, Texas, when a truck rolled back against him. Following the accident, the insured entered a hospital in Shreveport, La., where he later died. An action was instituted in Harrison County to recover the death benefits provided in the insurance contract. One of the issues was whether venue was in Iiarrison County. The plaintiff contended that venue was in said county because it was there that the accident occurred which resulted in the injuries that caused the insured’s death. In rejecting said contention, the Court said this:

“In the case at bar the insurance contract in question was not made in Harrison County, Texas; the loss insured against, to wit, the death of E. R. Alexander (in the manner provided in the policy) did not occur in Harrison County, Texas, and the alleged breach of the contract (failure to pay) did not occur in Harrison County, Texas. Consequently if appellant had any cause of action no part thereof accrued in Harrison County, Texas, under exception 27 to the venue statute.”

The reasoning of the last-cited case sustains the proposition that the cause of action or actions presented by the instant case arise in Seminole County.

As to Dr. Jones, insurer also contends that he did not have a cause of action against it and if he had a cause of action, venue thereof was in either Oklahoma County or Tulsa County. If Dr. Jones had a cause of action, same, for reasons stated, was maintainable in Seminole County where the cause of action arose.

As I read the provisions of the insurance contract that are heretofore quoted, insurer agreed to pay “to” a person who became an insured because of said provisions, medical expenses incurred and paid by such person or to pay “for” and in behalf of such person, medical expenses that he incurred but which he did not pay. To otherwise construe the contract is to ignore the word “for” appearing in “Division 1” of “Coverage C” to the effect: “To or for each person who sustains bodily injury.” The law is settled that a court is not, as a general rule, at liberty to disregard words used in a contract. 12 Am.Jur. “Contracts”, Sec. 241 pp. 772, 775, and 17 C.J.S. Contracts § 308, p. 724. To my way of thinking, the referred-to provisions as to Dr. Jones clearly created a third-party beneficiary contract within the purview of 12 O.S.1951 § 29, and as a third-party beneficiary Dr. Jones was privileged to maintain an action against insurer in Seminole County where the cause of action presented by the instant case arose.

I am of the conviction that the judgment of the trial court should be affirmed.

For reasons stated,' I respectfully dissent from the majority opinion.

I am authorized to state that BLACKBIRD, V. C. J., concurs in the foregoing dissent.