Brotherhood Ins. Co. v. Harris

This was a suit by appellee against appellant for damages on account of the breach of an insurance contract described as "hospital insurance," whereby appellant agreed, etc., to furnish to appellee hospital services, including nursing, board, use of operating room, ether, medical treatment, surgical treatment, X-Ray treatment, while confined to a hospital selected by the "above named company" (appellant). It was also provided in said contract that the services mentioned were to be furnished to any member of the immediate family of the appellee.

The basis of the claim made in the suit is the failure or refusal of appellant to furnish, etc., the services mentioned to the wife of appellee, etc.

There are no questions raised as to the pleadings.

There seems no question that the policy contract, referred to, was issued by appellant, that it was in force, etc., at the time of its alleged breach, and that appellee's wife, under its terms, was entitled, in the failure of the defenses offered by appellant, to receive the services referred to, etc.

Appellant's argument to the effect that it was due the affirmative charge as for a failure of the evidence to afford an inference that appellee, or his wife, ever applied to appellant for the services, etc., to allow it "to select a hospital," etc., is met by the fact that appellee's testimony was to the effect that, when his application for the policy was taken, and the first premium paid, the agent representing appellant in the transaction designated the hospital he was to go to, and that, in accordance with this instruction, he did go to that hospital. See Hartford Fire Ins. Co. v. Guthrie, ante, p. 104, 131 So. 246, certiorari denied by Supreme Court, Id.,222 Ala. 146, 131 So. 248.

The evidence affording a fair inference, which the jury evidently drew, that appellant, on a specified date, definitely breached its contract, it could not reinstate the contract by a later offer to perform. Mutual Loan Soc., Inc., v. Stowe,15 Ala. App. 293, 73 So. 202.

The measure of damages for the breach of the contract here in question was the reasonable value of the services to be rendered. Trustees of Howard College v. Turner, 71 Ala. 429, 46 Am. Rep. 326; Rose's Ex'rs v. Bozeman, 41 Ala. 678.

Where counsel for appellant argues in bulk, as if presenting but one, several assignments of error, and one (any one) of such assignments is clearly without merit, it is not incumbent upon us to consider the others of same. City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337.

There was no motion for a new trial, and the question of the excessiveness vel non of the damages awarded, is not presented to us. Where this is the case, errors, if errors there were, in rulings touching the measure only, of damages, etc., are not prejudicial. Birmingham Belt Railroad Co. v. Hendrix, 215 Ala. 285,110 So. 312.

Able counsel are on both sides of this case, but the appellant's brief is prepared without regard to Supreme Court Rules 10 and 12.

Appellee's brief, while pointing out the deficiency in that for appellant, with reference to the two rules mentioned, and containing much valuable information for the court, is yet of such undue length as to make it difficult to avail ourselves of the aid it doubtless contains.

We are by no means sure that what we have written deals in an adequate way with the points appellant would present. But we have carefully studied, in the light of the law as we understand it, the rulings of the lower court underlying the assignments of error deemed by us to be even slightly insisted upon, and we have satisfied our minds, and hold, that there is prejudicial error in none of said rulings.

The case was fairly tried, and it is not even claimed that the damages awarded were excessive.

The judgment ought to be, and is, affirmed.

Affirmed.

On Rehearing.