Plaintiff brings this action for the breach of a contract of insurance issued by defendant in writing, which is in the following language:
"The Brotherhood Insurance Company, Inc., "Birmingham, Alabama "Hospital Insurance "Registration Fee $1.00
"In consideration of the party of the second part paying to the party of the first part the sum of Seventy-Five Cents (.75¢) each calendar month in advance, The Brotherhood Insurance Company, Inc., agrees to furnish Hospital Services hereinafter mentioned.
"Hospital Services, 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.
"It is understood by both parties that these services are to be rendered in the ward, in a Hospital selected by the Brotherhood Insurance Company, Inc., in Birmingham, Alabama, but if for any reason the party of the second part desires a private room, the ward price will be credited to the private room and party of the second part can pay the difference of $2.86 per day.
"This service will be given to any member of the immediate family.
"Charges will be made on the following:
"Gas, $10.00; Drugs, per week, $3.00; Dressings, $3.00 per week; Blood Examination, $2.00; X-Ray Film, $2.00 each; Urinalisis, $2.00.
"This contract does not cover Venereal Diseases or Cystopic Examinations.
"Grace period of payments of dues thirty days, insurance remains in full force.
"In witness whereof, The Brotherhood Insurance Company, Inc., has caused this policy to be issued, signed and delivered by its duly authorized officers at Birmingham, this 10 day of Sept. 1927.
"The Brotherhood Insurance Company, Inc. "W. C. Cranford, President. "H. M. Flinn, Secretary. "S.W. Jones, Policy Writer."
The application for the above policy was made to one J. F. Cooper, a soliciting agent of defendant company, who at that time, September 2d, issued a receipt to plaintiff for the first monthly premium. This agent at this time instructed plaintiff to go to the Woodlawn Infirmary. The policy was issued at the home office of the company and sent to plaintiff through the mail, accompanying which was a circular advertising the insurance company and having printed upon it and as a part thereof a picture of the Woodlawn Infirmary. The premiums were promptly and regularly paid, and the policy was in good standing on December 9th, when defendant's wife became sick and entitled under the policy to hospitalization as contracted in the policy. On December 9th, without any notice to defendant, plaintiff carried his wife to the Woodlawn Infirmary for treatment, where she was refused admittance. On Tuesday following the refusal of the hospital to admit plaintiff's wife, plaintiff went to the office of defendant company and asked to see Mr. Cranford, the president of the company, and was told he was out of town. Plaintiff made his business known to "a little man in the office" and left, returning no more. On December 21st afterwards, Cranford, the president, called on plaintiff and gave him a card on which was written an order to the Woodlawn Infirmary to admit plaintiff's wife, "As per contract held by Sam Harris with us." This order was signed "W. C. Cranford." Plaintiff never presented the order and made no further effort to obtain the benefits under the policy. Defendant is a corporation with W. C. Cranford as president, and the Woodlawn Infirmary is a corporation with Dr. J. H. Stephens as president. The plaintiff's wife is a negro, and no contractual or other relations are shown between defendant and the Woodlawn Infirmary whereby plaintiff's wife was to be received by the infirmary under contracts of insurance issued by defendant.
Under section 8371 of the Code of 1923, "no * * * insurance company, nor any agent thereof, shall make any contract of insurance, or agreement as to policy contract, other than is plainly expressed in the policy issued thereon." The contract therefore is contained within the four corners of the instrument sued on, into which is merged negotiations and representations leading up to its issuance by the company and delivery to the plaintiff. 32 Corpus Juris p. 1184, note 64, and authorities cited. It follows from the above that the testimony of plaintiff as to Cooper, the solicitor, instructing him at the time of taking the application to go to the Woodlawn Infirmary in case of sickness, was illegal and irrelevant. The policy reserved to defendant the naming of the infirmary.
Even if there should be evidence tending to prove a contractual relation between defendant and the Woodlawn Infirmary whereby the infirmary should furnish, generally, hospital services to policyholders of defendant at certain stipulated rates, the infirmary would have been an independent contractor, and, as to this plaintiff, such contract would be res inter alios acta, unless in such contract some agency of defendant on the part of the infirmary is shown, which is not the case here. Under the terms of the contract, the services to which plaintiff was entitled "are to be rendered in the ward, in a Hospital selected by the Brotherhood Insurance *Page 398 Company, Inc. in Birmingham, Ala." There is no evidence in this record that plaintiff ever applied to a responsible agent of defendant for hospital services under the policy. It is in evidence that, when Cranford, the president of defendant company, became aware of plaintiff's claim, he sought out plaintiff and offered to provide the hospitalization to which he was entitled under the policy, and that plaintiff failed to avail himself of the hospital selected by defendant. The evidence utterly fails to make out plaintiff's case as laid in the complaint, and the defendant was entitled to the affirmative charge.
It becomes unnecessary to pass upon the other questions presented.
The application is granted, the affirmance is set aside, and the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
RICE, J., dissents.