Maryland Casualty Co. v. McCallum , 200 Ala. 154 ( 1917 )

Action on a policy of accident insurance brought by appellee against appellant. Plaintiff, the beneficiary named in the policy, claimed that the insured came to his death by reason of wounds received in a personal rencounter in which he was wholly free from fault; defendant claimed that insured died of typhoid fever without contribution from wounds which, it contended, were trivial and inconsequential. There was evidence to support both contentions, and it may as well be said here that, whatever may be thought of the general result, there was evidence to support plaintiff's case, and the court committed no error in refusing charge 1, the affirmative charge, requested by defendant.

Counts 2 and 3 follow the code form of action on a policy of life insurance far enough to suggest that the pleader had the form in mind, and we held in National Life Accident Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45, that that form was not applicable to an action on a policy of accident insurance. Both the counts here in question go further in their description of plaintiff's alleged cause of action than did the count to which our observations were directed in the case supra. The counts here do not follow the form literally and throughout as did the count in that case. They allege that the insured received bodily injuries through external, violent, and accidental means, on, to wit, July 15, 1914, during the life of the policy, of which he died within 90 days, thus showing a fulfillment of the condition upon which defendant's liability depended in the language in which they also allege that condition was expressed in the policy. It was not necessary that the facts and circumstances attending the injury should be alleged. 1 Corp. Jur. 489.

Defendant contended, as we have said, that insured died of typhoid fever, and the physician who attended insured in his last illness testified in support of this contention. In view of the issue thus presented and the infectious nature of insured's alleged disease, to which medical witnesses testified, evidence that none of the customary precautions against the communication of the disease were taken, and that no other member of insured's family had or contracted the disease, had some — it may be slight — probative force. At least, the court is not willing to say that its admission constituted reversible error.

It was proper for the jury to know the weight and size of the sticks used in the assault upon the insured, and the sticks, produced and identified, would have been admissible in evidence. While not the best evidence in any sense that would require their production, the sticks themselves would have furnished a satisfactory illustration and explanation of their own capacity for inflicting a fatal injury, and the court is unable to see any harm in the ruling which permitted plaintiff to offer evidence tending to account for their absence. The objection here taken to this evidence, that it was unsatisfactory, that it did not go far enough, was not taken in the court below, could not have been intelligently made or ruled upon until the evidence on the point was closed. The objection in the trial court was most general in form, and went only to the question of admissibility. At no time was any point taken against this particular evidence that it was wholly ineffectual to prove the fact it was intended to prove.

The objection that the witness Blue was not shown to be an expert in the matter about which he was allowed to testify was not well taken. The witness said he was a surgeon; he did not say he was a physician. In a narrow technical sense surgery may consist in the treatment of injuries, deformities, or diseases by mechanical operations only; but a surgeon must know — the law requires that he know — the progress, manifestations, and results of the diseases and injuries which he treats, and hence we hold that Blue said enough of himself to show that he was qualified to speak as an expert of those matters about which he testified. Nor can the objection to the hypothetical question put to this witness be sustained on the ground that there was no evidence to sustain the assumption that one of the blows received by the insured was on the chest. The witness predicated his answer upon the hypothesis that one of the blows was on the side of the chest. This assumption had support in the evidence.

If the record afforded any tangible evidence that the reference to the Miller-Brent Lumber Company, contained in the several questions to the witness Stewart, was intended or had any effect to prejudice the defense with the jury, a reversal would be ordered on that ground. We have been unable to find any such evidence. It must be that the inference of prejudice has been drawn from local conditions with which counsel are familiar rather than from the record by which alone the court here is informed. In this state of the record the court's ruling on these questions may be justified on the ground that plaintiff was entitled to have the jury know in a general way what manner of man the witness was and the trial court had considerable latitude in controlling the course of the cross-examination in the progress of which these questions were asked.

The court committed reversible error in the rulings shown by the twenty-fourth, twenty-fifth, and twenty-sixth, and twenty-seventh assignments of error. The method of impeaching defendant's witness Maulden here followed was improper and should not have been allowed. Western Ry. of Ala. v. Turrentine, 73 So. 40.¹ True, plaintiff's attorney afterwards became suspicious of the correctness of the rulings in his favor on these questions, and moved that the impeaching evidence be excluded. To this motion the court responded in the following language:

"Let the record show that that part of the testimony with reference to the knife * * * on motion of the plaintiff is excluded before the case goes to the jury."

This method of curing error cannot be approved as effective. Where evidence has been erroneously admitted, a clear instruction to the jury that it is not to be considered will ordinarily be allowed to have the effect of curing the error, though this court has always regarded the practice with cautious disapproval. Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565; Green v. State, 96 Ala. 32,11 So. 478; Smith v. State, 183 Ala. 10, 62 So. 864. In the instant case there hardly seems to have been any effort to correct any impression this matter of impeachment may have made upon the jury; the effort was a mere formality, and was directed to the record rather than to the effect of the evidence upon the jury.

In Corpus Juris, vol. 1, p. 501, is to be found this statement of the law which we approve as sound and of probable utility on a second trial:

"Declarations by insured as to his present condition, ills, pains, and symptoms, to whomsoever made, are competent"

— and this on page 500:

"But his declarations as to the cause of the injury, made some time after the event, and not part of the res gestæ, cannot be admitted, even though made to his attending physician."

The question made the subject of the twenty-third assignment of error was a mere argument, and doubtless a proper objection to it would have been sustained.

While we are confident, as a matter of fact on the whole evidence, that the blows insured received on his head had nothing to do with his death, we hardly feel able to affirm as matter of law on undisputed evidence that such was the case, and hence we will not say that the refusal of charge 6 to the defendant was error.

Other assignments of error need not be specifically treated. Some of them are rather obviously lacking in merit; others are not likely to recur in their present shape.

Reversed and remanded. All the Justices concur, except

¹ 197 Ala. 603.