# Dungan v. Travelers Insurance > Oregon Supreme Court · November 25, 1970 · 257 Or. 511 URL: https://www.frixlaw.com/law-library/cases/6912014 ## Case - **Full name:** DUNGAN v. TRAVELERS INSURANCE COMPANY - **Court:** Oregon Supreme Court - **Decided:** November 25, 1970 - **Citations:** 257 Or. 511; 476 P.2d 915; 1970 Ore. LEXIS 459 - **Precedential status:** Published - **Opinion:** On rehearing by Howell - **Judges:** Connell, Holman, Howell, Sloan - **Cited by:** 1 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. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6912014 ## Opinion text ON PETITION FOR, REHEARING For the petition Tooze, Powers, Kerr, Tooze & Peterson and Edwin J. Peterson, Portland. No appearance contra. HOWELL, J. The defendant has filed a petition for rehearing, and contends that we held “at a matter of law that Fairview in toto was an institution primarily engaged in providing on an inpatient basis, facilities for the treatment and care of. injured and sick persons.” *524 We do not believe that it is necessary that the entire 640 acres of land and the dozens of buildings at Fairview be considered “a hospital” under the terms of the policy in order for plaintiff to recover. In addition to the other facilities, the complex at Fairview includes a hospital which, as we have mentioned, has a surgery room, emergency room, x-ray and laboratory facilities, and a staff of 12 fulltime physicians and graduate nurses on duty 24 hours per day. The hospital at Fairview is an “institution” which provides diagnostic and therapeutic facilities under a staff of physicians and nurses as required by the policy. The defendant also contends that Daniel’s residence care is not incidental to his need for hospitalization and that it should not be obligated to pay for any expenses other than those incurred for treatment at the hospital. Daniel’s mental retardation was the direct result of the diabetic coma or the insulin reaction. It was impossible to take care of him at home because of his mental condition and behavioral problems, all resulting from the brain damage caused by the diabetic coma. On one occasion he attacked his mother and destroyed the household furniture. Moreover, his mental condition prevents him from administering the insulin injection to himself. When Dammasch State Hospital was considering a transfer of Daniel to Fairview, the chief psychologist stated, “It would probably be well to make the basis of such a transfer the actual brain damage rather than his intellectual level * * (Emphasis supplied.) Shortly after he was admitted to Fairview, his behavior was described as “very bizarre, he is ob *525 viously psychotic, completely out of contact with reality” as a result of his brain damage. Later Daniel improved, but he still receives “daily behavior observation.” On one occasion in 1969 he escaped from his room and had to be forcibly returned. His parents testified that when they visited him “he recognized us, but he can’t put anything together any more. * * * He imagines things and we have to watch him constantly.” If Daniel did not have his physical and behavioral problems, he might very well be one of the many thousands of mentally retarded people in this state who are not institutionalized at Fairview. In this regard Dr. Callicrate, the medical administrator at Fairview, testified: “Q. Fairview home is operated by the State of Oregon, is it not? “A. Yes. “Q. And yon are employed by the State of Oregon? “A. Yes, sir. “Q. And' the reason that home exists is that there will be someplace where people with some mental defects can be taken care of; is that not correct? “A. I think there is more to it than that. In other words, not just any mentally retarded person can be brought in unless they are in need of a certain ldnd of care. “Q. What type of care must they need before they can be brought there? “A. They have to have other problems, you might say, other than just being mentally retarded. If you look at the population of the State of Ore *526 gon, counting the mentally retarded you would he counting up to about sixty thousand people. Our facilities care for about twenty-two hundred, which is a small portion of the population of Oregon; In other words, of the population of retarded people that we get, usually have some other complicating things, not attendant to the mental retardation; in other words, involves things that might be mental in combination with a physical condition plus retardation, and that is the reason our facilities have to exist.” We believe that the evidence supports the conclusion that Daniel’s residence care is incidental to his need for hospitalization. The defendant also contends that the evidence presented a question of fact and not of law and that this court should not have decided that plaintiff was entitled to a directed verdict. In its briefs and in the oral argument before this court, counsel for defendant has contended that the evidence presented a legal, not a factual, question in the defendant’s favor. We believe that the undisputed facts entitled the plaintiff to a directed verdict. The petition for a rehearing is denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6912014. Public record. Not legal advice.