Metropolitan Life Ins. Co. v. Wright , 190 Miss. 53 ( 1940 )

The appellee recovered a judgment against the appellant on a disability insurance policy providing payments to the insured thereunder to begin if and when the insured becomes "wholly and permanently disabled by accidental injury or disease, before attaining the age of sixty years, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit." The evidence was in conflict as to whether the appellee had become permanently and wholly disabled within the meaning of the policy. Only three of the assignments of error require a response thereto.

1. A physician who had examined the appellee was permitted to answer (which he did in the affirmative) the question: "In your opinion as a physician, would you say that he is or is not totally and permanently disabled?" The form of the question aside, it was incomplete in that it fails to ask what the appellee was disabled from doing. But that also aside, since the judgment must be reversed on other grounds, we come to the admissibility of the opinion on the assumption that it referred to the appellee's ability to perform "any work," as other testimony of the witness indicates that it does.

The answer of the witness was based on the fact that his examination of the appellee disclosed that he was suffering from hardening of the arteries and high blood pressure to such an extent that work would endanger his life. The effect of work on one suffering as the witness said the appellee was is not a question which a layman unacquainted with medical matters can satisfactorily decide without the assistance of expert medical testimony; consequently, the opinion of this witness, with the hereinbefore mentioned assumption, was properly admitted. 29 Am. Jur. Insurance, Section 1499; Cooper v. Metropolitan Life Ins. Co., 323 Pa. 295, 186 A. 125, and cases cited in note thereto in 111 A.L.R. at p. 603; 7 Wigmore on Evidence, 3rd Ed., Section 1975. Compare United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617, and the criticism thereof in Wigmore on Evidence, op. cit., and note to 111 A.L.R. at p. 604.

2. The court below charged the jury for the appellee "that if you believe that any witness has knowingly and maliciously sworn falsely to any material fact, then you may entirely disregard the entire evidence of such witness." This instruction omits the word "corruptly," which, or its full equivalent, this Court has several times said must appear therein; whether the evidence must be corruptly given appears by implication or is embraced within the word "maliciously" we will not pause to inquire, for the instruction should not have been given even though the word "corruptly" had appeared therein. The exploded (McDonald v. State (Miss.), 28 So. 750), dangerous (Bell v. State, 90 Miss. 104, 43 So. 84), worthless (3 Wig., Ev. (3 Ed.), Sec. 1008), and pernicious source of new trials (cf. Turner v. State, 95 Miss. 879, 50 So. 629) maxim, "falsus in uno, falsus in omnibus," on which the instruction is based, deals only "with the weight of evidence. The jury are told by it what force to give to a falsity after the evidence has shown its existence." Wigmore, op. cit. To include it in an instruction to a jury, therefore, is in direct violation of Section 586, Code 1930, which provides that: "The judge . . . shall not . . . charge the jury as to the weight of evidence." That such an instruction violates that section has not heretofore been taken into consideration by this Court when passing on instructions based on the maxim.

3. The appellee is suffering, according to his testimony, from hardening of the arteries and such high blood pressure that work would endanger his life. At the time of the trial in the Court below, he was and had for some time been doing road construction work for the Works Progress Administration. According to his evidence, the work was of a light character, requiring but little physical exertion. According to the evidence for the appellant, it was heavy work — with pickaxe and shovel.

Sometime before the trial, an agent of the appellant made a motion picture of the appellee at work on a highway, which picture, according to the appellant's evidence, discloses he was then at hard labor, shoveling gravel. The picture was shown to the judge out of the presence of the jury, who, on objection by the appellee, refused to let it be shown to the jury, assigning as a reason therefor "that for the jury to see the picture would be to create prejudice . . . it would not be the fair thing to do." The picture, according to the undisputed evidence, was taken by a competent motion picture photographer with a motion picture camera of standard make in good condition, and would accurately reproduce the scene photographed, including the speed at which the appellee was then working. The film of the picture was made by an expert therefor and was in the same condition then as when made. It was to be thrown on a screen by a projector of standard make in good condition, operated by a competent operator.

Evidence by means of motion pictures exhibited to a trial jury, while novel, is admissible when the accuracy with which they will reproduce the scenes photographed is proven, — somewhat like the accuracy of an ordinary photograph is proven. 3 Wig. Ev. 3rd Ed., Sec. 798a. This record does not disclose whether, in order to exhibit the picture to the jury, it would have been necessary to darken the courtroom; or if such was necessary, that any reason then existed that would render it improper or impracticable for the court to sit temporarily in darkness, in the absence of which this picture was admissible in evidence. This question has arisen in other jurisdictions, but no good purpose would be served by discussing the cases dealing therewith as the principles governing its solution are simple and well established. All we have here is the application of old principles to new facts.

We are not dealing with a picture of a scene reconstructed and staged for the purposes of the picture by actors according to their recollection of the original, as to the admissibility of which we express no opinion.

Reversed and remanded.