Sabino v. INDEPENDENT LIFE AND ACCIDENT INSURANCE COMPANY

On the Merits

Petitioner argues in brief that the trial court’s judgment does not adequately reflect all of the facts in this case. The basis for this contention is the alleged refusal of the trial court to adopt a proposed findings of fact and conclusions of law submitted by petitioner to it and which included a purported findings of fact based on a “pleading” filed with the trial court after the case had been tried and taken under submission but before judgment. This “pleading” set out that respondent had settled a láwsuit against the manufacturer and retailer of the automobile in which he received his injuries and had released them from further liability. This “pleading” was not sworn to, and there is no evidence in the record to support it. Petitioner also amended its answer subsequent to the hearing but prior to the decision by the trial court. The amended answer alleged that there had been a settlement with the tortfeasors causing respondent’s injuries and, consequently, there existed no liability on petitioner under the workmen’s compensation law. There is no proof in the record to support the amended answer.

The cases cited by petitioner in support of its contention are concerned with the adequacy of the trial court’s findings- of fact to support the judgment. In the instant case the trial court found that respondent was injured in an accident which arose out of and in the course of his employment with petitioner; that petitioner had prompt notice of the accident; that petitioner had not paid any medical expenses incurred by respondent as a result of his injuries, and that the medical expenses amounted to $2,627. The evidence taken before the trial court on February 23, 1973 adequately supported the findings of fact made by it as set out above. Consequently, the requirements of the cases cited by petitioner as they relate to the findings of fact have been met in the instant case. This being so, petitioner’s first contention is without merit.

Petitioner’s second contention is that the trial court erred in ordering it to pay for the medical services respondent received at the U. S. Air Force hospital at Maxwell Field, Montgomery, Alabama, for the reason that respondent was entitled to these benefits without cost because he was a disabled veteran. In making this argument, petitioner relies heavily on Title 26, Section 293, Code of Alabama 1940, as Recompiled 1958, and as amended, which provides in part as follows:

“In addition to the compensation herein provided, the employer shall pay the actual cost of reasonably necessary medical and surgical treatment and attention, medicine, medical and surgical supplies, crutches [original artificial members], and apparatus, as may be obtained by the injured employee during the first [three years] of disability, .... In case an insurer of the employee or a benefit association is liable for such medical, surgical and hospital service, or for a part thereof, or in case the employee is entitled to the same or a part thereof, from any source whatever by virtue of any agreement or understanding, or law, state or federal, without any loss of benefit to the employee, the employer shall not be required in such case to pay any part of such expense, unless said benefits are insufficient to pay as much as said [seventeen thousand five hundred] dollars, and in such event the employer shall be liable for the deficiency only. . . . ” (Emphasis added.)

It will be noted that Section 293 specifically provides that if an employee is by “. . . law, state or federal . . .” entitled to receive medical services from a source other than the employer, then the employer is not liable for the medical benefits under the workmen’s compensation law.

In Poultry and Egg Co. v. Smith, 41 Ala.App. 665, 149 So.2d 838, the Court of Appeals of Alabama held that the employer, under the provisions of Title 26, Section 293, Code of Alabama 1940, as Recompiled 1958, was liable for the medical, surgical and hospital expenses incurred by the employee and implied that if the employee was entitled to these benefits from some other source, the employer would not be so liable. In the case at bar it is without dispute that respondent, being a disabled Korean war veteran, was entitled to receive treatment for his injuries at a U. S. Government hospital.

Respondent replies to the above argument made by petitioner by saying that he is merely suing on behalf of the government to recover for the cost of the medical care given him, and cites us to 42 U.S.C. §§ 2651-2653, which provides in part as follows:

“ . . . (a) In any case in which the United States is authorized or required by law to furnish hospital, medical, surgical, or dental care and treatment . to a person who is injured or suffers a disease, . . . under circumstances creating a tort liability upon some third person ... to pay damages therefor, the United States shall have a right to recover from said third person the reasonable value of the care and treatment so furnished or to be furnished and shall, as to this right be abrogated to any right or claim that the injured or diseased person, . . . has against such third person to the extent of the reasonable value of the care and treatment so furnished or to be furnished. The head of the department or agency of the United States furnishing such care and treatment may also require the injured of diseased person, . to assign his claim or cause of action against the third person to the extent of that right or claim.” (Emphasis added.)

Respondent’s amended complaint alleges:

“As a result of said injuries, the Plaintiff has received medical and hospital care and treatment furnished by the United States of America under the Provisions of 42 U.S.C. §§ 2651-2653, and with its express consent, asserts a claim for the reasonable value of said care and treatment, to-wit: $2,627.00.”

The trial court’s award states:

“The Court is also of the opinion, and so holds, that the Plaintiff incurred certain medical expenses by reason of said injuries as alleged in the amount of $2,627.00 under the Provisions of 42 U. S.C. §§ 2651-2653.

“It is therefore, ORDERED, ADJUDGED AND DECREED that the Plaintiff have and recover of the Defendant the sum and judgment of $2,627.00.”

It will be noted that respondent’s complaint asserts that he received medical care at the hands of the U. S. Government and that he is suing to recover these benefits with its express consent, . ” but nowhere does he allege that the U. S. asked him to recover these expenses for it nor does it aver that the recovery is being made for the federal government.

In Palmer v. Sterling Drugs, Inc., 343 F.Supp. 692, a U. S. District Court case from the Eastern District of Pennsylvania, and on which respondent relied heavily in brief, the complaint specifically averred:

. . As a further result of said injuries the plaintiff has received and in the future will continue to receive medical and hospital care and treatment furnished by the United States of America. The plaintiff for the sole use and benefit of the United States of America under the provisions of 42 United States Code §§ 2651-2653, and with its expressed consent, asserts a claim for the reasonable value of said past and future care and treatment.”

The trial court in the cited case also stated that the proof revealed a letter from the Veterans Administration requesting plaintiff to include this request for special damages in its complaint against the third party tort-feasor.

In the case at bar there was no proof that the U. S. Air Force had requested the respondent to collect these medical expenses for its use and benefit. Nor is there any evidence in the record to support the allegation in the amended complaint that the U. S. Air Force had “expressly” consented to the action by respondent. There being no legal evidence to support the allegation it follows that the trial court’s finding to the effect that respondent was suing to recover the medical expenses for the use and benefit of the U. S. Government is also without support in the evidence.

Title 42, Section 2651, U. S. Code, authorizes the United States to recover for hospital care furnished to one entitled thereto, “. . . under circumstances creating a tort liability upon some third person ... to pay damages therefor, . ” The case at bar is not a tort action for damages, it is a workmen’s compensation case authorized by a legislative enactment. See Title 26, Section 271, Code of Alabama 1940, as Recompiled 1958. Such a statutory proceeding as this has been construed as an action ex contractu. Owens v. Ward, 49 Ala.App. 293, 271 So.2d 251. Consequently, we do not believe that the respondent here was legally authorized to attempt to recover from his employer under the provisions of Title 26, Section 253 et seq., Code of Alabama 1940, as Recompiled 1958, and as amended, for and on behalf of the U. S. Government pursuant to 42 U.S.C. §§ 2651-2653. We are also convinced that the evidence fails to support the trial court’s finding that the respondent here was seeking to recover medical benefits from the petitioner for the use and benefit of the U. S. Government. The trial court’s error in ordering petitioner to pay respondent’s medical expenses under the circumstances herein-above described requires a reversal of this award.

The trial court’s judgment in this case is reversed and one rendered here absolving petitioner from any liability in this proceeding for the medical benefits furnished to respondent by the United States of America as above mentioned.

Motions overruled.

Reversed and rendered.

WRIGHT, P. J., and HOLMES, J., concur.