(dissenting).
I respectfully dissent. It is my opinion that the finding of the jury, that the Beaumont Remedial Clinic, Inc. was a hospital as defined by the policy of insurance sued upon, is supported by the evidence.
It is readily agreed by all parties that under the law of this state, since policies of insurance are written by the insurer, they should be liberally construed in favor of the insured.
This policy of insurance, in its definition of “hospital” has many requirements, all of which, I feel, have been sustained by the evidence. My construction of this definition is that the “hospital” must meet this test:
1. It must provide diagnostic and therapeutic faciliites for:
(a) surgical and medical diagnosis, and
(b) treatment and care of injured and sick persons, both, under the supervision of a staff of physicians.
2. It must be primarily engaged in providing such facilities:
(a) for compensation, and
(b) on an inpatient basis.
3. It must continuously provide 24 hour a day nursing service by registered graduate nurses.
4. It is not (other than incidentally) a place for rest, a place for the aged, a place for drug addicts, a place for alcoholics, or a nursing home.
First, generally, the undisputed evidence shows: That appellees’ son suffered from the disease, dyslexia, for which he was receiving medical treatment at the Beaumont Remedial Clinic, Inc. That this boy was the patient of Dr. W. P. Roberts, Jr., a pediatrician, who had him admitted. That Beaumont Remedial Clinic, Inc. was a member of the American Hospital Association and the Texas Hospital Association. That it occupies the former St. Therese General Hospital, and contains 90 rooms for inpatients, a pharmacy, infirmary, emergency room, therapy rooms, administrative rooms, and a cafeteria. That this boy was occupying one of these rooms on an inpatient basis.
As to the specific requirement of the policy definition of “hospital”, the undisputed evidence shows: That the Beaumont Remedial Clinic, Inc. building contains a pharmacist to operate the pharmacy, lab technicians to operate the lab, a medical staff and a professional staff. Beaumont Remedial Clinic, Inc. has facilities for surgery and operations. A complete list of the surgical and diagnostic equipment was offered in evidence, and there is no suggestion that any necessary equipment was not included in this list that might be needed for the treatment and care of injured and sick persons.
The undisputed evidence shows the Beaumont Remedial Clinic, Inc. provides its facilities for compensation, and I agree with the majority opinion that it is primarily engaged in providing its facilities on an inpatient basis.
All of the evidence shows that Beaumont Remedial Clinic, Inc. is not a rest home for the aged, nor a nursing home, nor for drug addicts nor for alcoholics.
The evidence further shows: That there is round-the-clock nursing service. The nursing staff is composed of R.N.’s, L.V. N.’s and nurses’ aids, providing 24 hour nursing service. That there are 2 R.N.’s, one working from 7:00 a. m. to 3:00 p. m., and the other from 3:00 p. m. to 11:00 p. m. *457That these R.N.’s are on call seven days a week, but are actually present only five days a week. That these two R.N.’s are at home at other hours, and if needed are called and come. The L.V.N.’s would actually be there at all times.
Appellants’ third point of error was sustained by the majority opinion, citing the Scott case, supra, as authority. The policy of insurance being construed in the Scott case was similar in its terminology in many respects, with the one we have under study. The Scott case policy required the hospital to have facilities for diagnosis and major surgery, and Justice Pope pointed out in that opinion that there was no dispute and the Foundation did not have the required facilities. There was no holding in the Scott case that the Foundation was not a hospital because no surgery was performed, but because there were no facilities. In the case before us, there was no requirement that surgery be performed, but only that the facilities be provided. As pointed out above, the undisputed evidence showed the facilities in our case were, provided.
The only serious question is whether the Beaumont Remedial Clinic, Inc. continuously provided 24 hour a day nursing services by registered graduate nurses. There are no Texas cases passing directly upon this point. We have been cited three out-of-state cases, two of which are favorable to the position taken by plaintiffs. In McKinney v. American Security Life Ins. Co., 76 So.2d 630 (La.Ct. of App., 1954), the definition of “hospital” in the policy read in part: “* * * and which has a Graduate Registered Nurse always on duty.” That court held the institution to be a hospital even though it had only one graduate registered nurse on duty a major portion of the day. That court pointed out the difficulty for a hospital in a rural area to meet technical requirements which have no important relation to the treatment of the policy holder. In Meyers v. Aetna Life Ins. Co., 207 Pa.Super. 526, 218 A.2d 851 (1966), the policy definition of “hospital” read in part: “* * * and which provides the services of registered nurses (R.N.) 24 hours a day. * * *” That court held it was sufficient if the services of a registered nurse were available on a 24 hour a day basis.
It is my opinion that Beaumont Remedial Clinic, Inc. continuously provided twenty-four hour a day nursing service by registered graduate nurses, and complied with the terms of the insurance policy before us, in that respect.
As mentioned above, this policy of insurance contained several specified exclusions. If the insurer desired to exclude hospitals for the treatment of dyslexia from its coverage, it would have been a simple matter to list it along with the others.
I would affirm the trial court judgment.