{
  "id": 2910638,
  "name": "Thales Umberger et al., Plaintiffs-Appellees, v. Hospital Service Corporation et al., Defendants-Appellants",
  "name_abbreviation": "Umberger v. Hospital Service Corp.",
  "decision_date": "1972-03-10",
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  "casebody": {
    "judges": [],
    "parties": [
      "Thales Umberger et al., Plaintiffs-Appellees, v. Hospital Service Corporation et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "PER CURIAM:\nThe trial court of Christian County entered judgment in favor of the plaintiff and against the defendant Hospital Service Corporation in the amount of $737.19 and against the defendant Illinois Medical Service Corporation for the sum of $275.\nDefendants contend in this appeal that plaintiff is excluded from benefits because the evidence before the trial court disclosed that plaintiff was entitled to hospital and medical benefits under the Illinois Workmen\u2019s Compensation Act. Hospital Service Corporation\u2019s certificate contains the following exclusion:\n\u201cIV. Exclusions of Benefits and Waiting Period(s):\n(A) No Member shall be entitled to benefits in a Plan or Non-Plan Hospital for any of the following:\n(6) Care of injuries or diseases for which the Member is entitled to Hospital care, or for which he receives any award or settlement in any proceeding filed, under workmens compensation or occupational diseases law of federal employers\u2019 liability laws.\u201d\nand Illinois Medical Service Corporation\u2019s certificate contained the following exclusion:\n\u201cIV. Medical Expense Indemnity Excluded:\nThis Certificate does Not provide payment for or indemnity against:\n(4) The services described in Article III if the Physician\u2019s, Dentist\u2019s or Podiatrist\u2019s care for such service is, or was, available to the Beneficiary receiving such service under any municipal, state or federal law or regulation, such as workmen\u2019s compensation if the veteran elects to receive services of a Physician, Dentist or Podiatrist provided by the government.\u201d\nDefendant also contends that the trial court erred in not admitting into evidence the past recorded recollection of a witnss to a purported admission of plaintiff when he entered the hospital.\nPlaintiff testified that on Saturday, May 13, 1967, he was employed at Carl\u2019s Garage in Pana, Illinois. It was customary to quit early on Saturdays, sometimes as early as 10:00 or 10:30 A.M. He worked until approximately 11:30 A.M., when he washed his hands and put his tools away. He then left the garage to go home, but after traveling about 20 feet, he decided he wanted to take his unionalls off, so he returned to the garage. He slipped on the walk just outside the garage door just as he started through the door. After he fell he was immediately hospitalized.\nHe denied on cross-examination that he told anyone at the emergency room in the hospital that he slipped on some grease and fell while walking across the garage floor.\nDefendants attempted to prove by the testimony of a nurse who worked at the emergency room of the hospital to which plaintiff was taken that she made the following entry in her own handwriting when plaintiff was admitted to the hospital:\n\u201cMale brought to Emergency Room per McCracken\u2019s. States that he is employed as a mechanic at Carl Jannick\u2019s Garage and he was walking across the garage floor and slipped in some grease and fell. Patient has amputation below right knee. Right hip area swollen and painful. Stump end discolored.\u201d\nShe did not have an independent recollection of having talked to Umberger nor did she have any independent recollection of having made the memorandum. However, she did testify that the memorandum was an accurate representation of the conversation between herself and Mr. Umberger. In our opinion the trial court erred in refusing to admit the memorandum. Stanton v. Pennsylvania R.R. Co., 32 Ill.App.2d 406; Diamond Glue Co. v. Wietzychowski, 227 Ill. 338; Healy v. City of Chicago, 109 Ill.App.2d 6; People v. Harrison, 384 Ill. 201.\nAfter hearing the evidence the trial court took the case under advisement and then entered the following judgment against defendants:\n\u201cThis cause having been taken under advisement and the arguments of counsel and briefs having ben considered and aU of the evidence in the case having been reviewed the court finds:\nThat the Plaintiff, Thales Umberger, was injured and hospitalized as the result of falling on May 13, 1967; that the plaintiff was insured under poHcies of insurance at said time; that the defendants have faffed to prove by a preponderance of the evidence that the faH and injury sustained occurred in the course of employment and while covered by Workmen Compensation benefits; Judgment is entered against the defendant Hospital Service Corporation for $737.19 and costs of suit and against the defendant, Illinois Medical Service for $275.00 and costs of suit.\u201d\nDoes the exclusion of the memorandum require reversal and remandment for a new trial? Where it appears that an error did not affect the outcome, the judgment or decree will not be disturbed. (Both v. Nelson, 31 Ill.2d 511; Lindroth v. Walgreen Co., 407 Ill. 121.) The burden of proving that the plaintiff\u2019s medical and hospital services were within the exclusions was on the defendants. Nalty v. Federal Casualty Co., 245 Ill.App. 180. Goldfarb v. Maryland Casualty Co., 311 Ill.App. 568; Wilson v. National Automobile & Casualty Ins. Co., 22 Ill.App.2d 34; Caster v. Motors Ins. Corp., 28 Ill.App.2d 363; Deterding v. State Farm Mutual Auto. Ins. Co., 78 Ill.App.2d 29.\nTherefore, the burden was upon the defendants to prove, in the case of the Hospital Service Corporation pohcy, that plaintiff was \u201centitled to hospital care\u201d, and in the case of the IlHnois Medical Service Policy, that medical service was \u201cavailable\u201d to the plaintiff. The requirements of such a showing include proof that the injuries sustained by the plaintiff arose out of and in the course of plaintiff\u2019s employment (Workmens Compensation Act, ch. 48, par. 138.2, July, 1951) and that the employer provided or was obligated to provide the medical, surgical and hospital services in question. (Workmen\u2019s Compensation Act, ch. 48, par. 138.8(a), July, 1951; Hunt v. Hospital Service Plan of New Jersey, 33 N.J. 98, 162 A.2d 561, 31 A.L.R.2d 919.) Defendant did not make such proof at the trial.\nThus, even if the memorandum had been admitted into evidence, the evidence was still not sufficient to sustain defendants burden of proof.\nTherefore, the trial courts judgment is affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "PER CURIAM:"
      }
    ],
    "attorneys": [
      "Gorham, Adams, White & DeYoung and Kirkland, Ellis, Hodson, Chaffetz & Masters, both of Chicago, (John F. Arnold and Donald J. Duffy, of counsel,) for appellants.",
      "Robert Broverman, of Taylorville, for appellees."
    ],
    "corrections": "",
    "head_matter": "Thales Umberger et al., Plaintiffs-Appellees, v. Hospital Service Corporation et al., Defendants-Appellants.\n(No. 70-134;\nFifth District\nMarch 10,1972.\nGorham, Adams, White & DeYoung and Kirkland, Ellis, Hodson, Chaffetz & Masters, both of Chicago, (John F. Arnold and Donald J. Duffy, of counsel,) for appellants.\nRobert Broverman, of Taylorville, for appellees."
  },
  "file_name": "0123-01",
  "first_page_order": 143,
  "last_page_order": 147
}