# Old Southern Life Insurance Company v. Moore

> Alabama Court of Appeals · April 18, 1967 · 44 Ala. App. 183

URL: https://www.frixlaw.com/law-library/cases/6527292

## Case

- **Full name:** Old Southern Life Insurance Company v. Lois N. Moore.
- **Court:** Alabama Court of Appeals
- **Decided:** April 18, 1967
- **Citations:** 44 Ala. App. 183; 204 So. 2d 828; 1967 Ala. App. LEXIS 454
- **Precedential status:** Published
- **Opinion:** On rehearing by Johnson
- **Judges:** Johnson
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

On Rehearing
JOHNSON, Judge.
Appellant contends in his-application for rehearing that the jury verdict and award of damages to appellee was excessive. After a close surveillance of the record, we find that appellant’s contentions have some merit.
The three hospital bills of appellee introduced into evidence were $82.40 (August 11-13), Plaintiff’s Exhibit No. 2; $107.90 (August 23-27), Plaintiff’s Exhibit No. 3; and $514.25 (September 16-October 1), Plaintiff’s Exhibit No. 4. The total amount paid by appellee, as reflected by the record, was thus $704.55. Of the above stated amounts, appellee claims only $62.00 of Exhibit No. 2 ($82.40) ; $93.00 of Exhibit No. 3 ($107.90); but claims $561.00 of Exhibit No. 4 ($514.25) covering the hospital stay and operation. The total amount thus claimed came to the amount of the verdict awarded — $716.00.
The policy states under Part One (b), Hospital Expense Benefit, as follows:
“Necessary Miscellaneous Hospital Expense at an amount each day not to exceed the daily room benefit, incurred by utilization of X-Ray, Anesthesia, Laboratory, Operating Room, Drugs and Medicine, use of Oxygen, Surgical Dressings, and Ambulance Service. These benefits are specifically limited to a total which shall not exceed ten times the daily room benefit of this policy.”
This “Daily Hospital Indemnity”, as shown in the “Schedule” of the policy, is $15.00.
The policy also enumerates a “Benefit for Doctor’s Fee While in Hospital” as Part One (c), in an amount “not to exceed three dollars ($3.00) per day for doctor’s visits to the insured” and stating that “benefits will commence with the third day of hospital confinement”. The maxi *188 mum surgical benefit as admitted by appellant in his memorandum brief, is $200.00. These figures apply to the bills of appellee as follows:
(1) August 11-13,1965 (Bill of $82.40)
2 days room and board at $13.00 per day------------------$ 26.00
2 days mise, expenses at $15.00 per day------------------- 30.00
56.00
(Note: No doctor’s visit fee paid until the third day.)
(2) August 23-27,1965 (Bill of $107.90)
3 days room and board at $13.00 per day-------------------$ 39.00
3 days mise, expenses at $15.00 per day------------------- 45.00
1 day doctor’s fee--------------------------------------- 3.00
87.00
(3) September 16-October 1,1965 (Bill of $514.25)
' 15 days room and board at $13.00 per day------------------$195.00
10 days mise, expenses (maximum allowable) $15.00 per day 150.00
Surgical fee-------------------------------------------- 200.00
545.00
(Note: This figure represents the maximum amount allowable for the third period (September 16-October 1, 1965). The “Surgical Expense Provisions” of the policy .states as follows: “The company will pay actual expenses incurred for surgical operations ... up to limits of payment . . (Emphasis ours.) The total of the operation bill, $514.25, is the maximum amount which may be claimed on Exhibit No. 4. Therefore, appellee’s claim of $561.00 is excessive.)
Since the claim in this case is for damages incurred, we must then look to the actual damages suffered as follows:
(A.) Claim for August 11-13 ................ $ 56.00
(B.) Claim for August 23-27................. 87.00
(C.) Claim for September 16-October 1 ...... 514,25
TOTAL ........ 657.25
See United Security Life Insurance Co. v. Wisener, 40 Ala.App. 350 , 113 So.2d 530 .
In the case at bar the verdict awarded was $716.00; the appellee was entitled to only $657.25; and the excess amounts to $58.75.
Payment of interest was asked in this case and we believe it was justly due. Code of Ala., 1940, Tit. 9, Sec. 60, sets this interest at 6%. The case of Whitworth v. Hart, 22 Ala. 343 , states in part as follows:
“The interest is but a just compensation for withholding the principal sum; and when the principal sum is ascertained to be due at a particular period, and remains unpaid, without a sufficient excuse for its nonpayment, the interest follows as an incident. — See Godwin et al. v. McGehee, 19 Ala. 468 ; [Crawford v. Simonton’s Ex’rs], 7 Port. 110 ; [Kirkman v. Vanlier], 7 Ala. [217] 218.”
See also Ben Cheeseman Realty Co. v. Thompson, 216 Ala. 9 , 112 So. 151 .
Thus, appellee was entitled to interest from the date she was able to make her claim, October 1, 1965, until the date the judgment was rendered, May 27, 1966— approximately eight months. Interest for this period would be }/% x 6% of $657.25, or $26.96. By a set off of this interest against the amount in excess of that entitled to appellee, the amount in excess is reduced *189 to $31.79 ($657.25 plus $26.96 = $684.21; $716.00 minus $684.21 = $31.79). However, because interest of 6% also runs on a judgment and verdict from date of rendition until paid (Code of Ala., 1940, Tit. 9, Sec. 63), the remaining $31.79 will be more than offset by at least $61.59 (6% of $684.-21 for eighteen months — May 27, 1966, to date) and the verdict of the jury in this cause is without error by Sup.Ct. of Ala., Rule 45, as the judgment in this cause is due to be affirmed.
Opinion extended.
Application overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6527292. Public record. Not legal advice.