Prudential Ins. Co. of America v. Faulkner

• Decision Date: 28 February 1934
• Docket Number: No. 839.,839.
• Citation: 94 ALR 1160,68 F.2d 676
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. FAULKNER.
• Court: U.S. Court of Appeals — Tenth Circuit

94 ALR 1160, 68 F.2d 676 (1934)

PRUDENTIAL INS. CO. OF AMERICA v. FAULKNER.

No. 839.

Circuit Court of Appeals, Tenth Circuit.

January 12, 1934.

Rehearing Denied February 28, 1934.

Grant H. Bagley, of Salt Lake City, Utah (Waldemar Van Cott, P. T. Farnsworth, Jr., W. Q. Van Cott, and B. R. Howell, all of Salt Lake City, Utah, on the brief), for appellant.

A. H. Hougaard and B. P. Leverich, both of Salt Lake City, Utah, for appellee.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

BRATTON, Circuit Judge.

The parties will be denominated as they were in the trial court. Defendant issued a group insurance policy insuring certain of its employees, including plaintiff. The policy provides, among other things, that if any person insured under its terms shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever to such an extent that he is rendered wholly, continuously, and permanently unable to engage in any occupation or perform any work for compensation during the remainder of his life, the company will waive further payment of premiums so far as such person is concerned and will pay him the amount of the insurance either in one sum six months after receipt of proof of such disability, or in sixty monthly installments in the sum of $17.95 for each $1,000 specified, the first installment to be paid immediately after receipt of proof of disability, and subsequent ones on the first of each month thereafter.

Pursuant to the provisions contained in such policy, three certificates of insurance were issued to plaintiff while he was employed by defendant, the first two being for $2,000 each, and the third being for $4,000. Each of them provides that if plaintiff becomes totally and permanently disabled while the policy is in force and effect, the company will pay him the amount specified either in one sum or in monthly installments conforming to the group policy.

Plaintiff sued in three causes of action, each cause seeking to recover on one of the certificates. He alleged that the certificates were in force and effect; that all premiums thereon had been paid; that he was an employee of the company; that he was under the age of sixty years; that he suffered from chronic organic heart disease, chronic myocarditis with angina pectoris, chronic bronchitis, and severe nervous instability; that resulting from such disability he was then and had been for more than six months preceding the institution of the suit totally and permanently disabled; that he would be so throughout the remainder of his life; that proof of such impairment had been furnished and payment refused. Defendant denied the several allegations of disability, and in addition thereto it alleged that the group insurance policy expressly provides that it shall cease upon termination of employment of any employee; that plaintiff's employment terminated on April 12, 1932; and that the insurance ceased so far as it affected him on that date. The jury returned a verdict as follows: "We, the Jury, duly empaneled and sworn in the above entitled cause find the issues joined in favor of the plaintiff and against the defendant in the sum of $8000.00, which said total sum, at the option of the defendant, shall be paid on or before six months after the ______ day of August, 1932, or in sixty monthly installments of $143.60 on the first of each and every month beginning with the month of August, 1932, of which there are four installments now unpaid — in the sum of $574.40."

Judgment was rendered for plaintiff. After reciting formal matters and after quoting the verdict, it concludes with these provisions:

"And the defendant having requested the court to give the following instructions to the jury, `If under the instructions given you you find a verdict for the plaintiff, you will assess his damages in the sum of $143.60, with interest thereon from August 3, 1932, at the rate of eight per cent per annum,' and having elected thereby to exercise its option to pay the amount of the aforesaid judgment in monthly installments.

"Wherefore, it is ordered and adjudged by the court that the plaintiff, Robert Faulkner, recover of and from the defendant, Prudential Insurance Company of America, a corporation, the sum of $8000.00 in sixty monthly installments of $143.60 payable on the first day of each and every month, commencing with the 1st day of August, 1932, of which there are four installments now unpaid in the amount of $574.40; and that the plaintiff have and recover judgment against said defendant for his costs herein incurred to be taxed upon a verified cost bill, and that he have execution therefor."

Defendant perfected this appeal in seasonable time and in proper mode.

The first assignment of error argued relates to the admission of plaintiff's testimony that he served in the World War; that he participated for three days in the battle at Argonne; that it was a furious battle; that the noise from explosion of shells was very great; that a shell exploded near him; that it threw him about fifty feet; that he was rendered unconscious; that he lay in mud and water until he was rescued by an officer; and that his fingers were blown off. The only objection interposed to the introduction of such testimony was that it was immaterial. Plaintiff's allegation of nervous instability was a material one and the testimony was pertinent to establish it. It requires no argument to demonstrate that an experience of that unusual character is reasonably calculated to affect one's nervous system, and it is easily conceivable that the effect of such an ordeal may manifest itself in different ways years afterwards. A general objection that tendered testimony is immaterial is not sufficiently definite to direct the court's attention to specific grounds of inadmissibility. Obviously, the objection interposed was untenable.

It is urged here that the testimony was offered for the plain purpose of enlisting the sympathy of the jury and that it inflamed their minds. That is a new and different ground of objection not urged in the trial court. It is presented here for the first time. For that reason alone the contention cannot be sustained. But aside from that consideration and assuming that such an objection was seasonably made during the progress of the trial, it is without merit. The true test of admissibility of testimony in a situation similar to the one presented here is its relevancy and materiality. Testimony pertinent to a material issue will not be excluded merely because it may have a prejudicial effect on the opposing party or may arouse the jury. Hussmann v. Leavell & Sherman (Tex. Civ. App.) 20 S.W.(2d) 829; Pease v. Smith, 61 N. Y. 477; Vicksburg & J. R. Ry. Co. v. Patton, 31 Miss. 156, 66 Am. Dec. 552; Hiller v. Village of Sharon Springs, 28 Hun (N. Y.) 344; Orscheln v. Scott, 90 Mo. App. 352; Carrico v. West Virginia Central I. P. Ry. Co., 39 W. Va. 86, 19 S. E. 157, 24 L. R. A. 50; State v. Moore, 80 Kan. 232, 102 P. 475. The evidence, being relevant to a material issue, was properly admitted although it may have stirred the sympathy of the jury in favor of plaintiff. From a careful and painstaking examination of the entire record we do not believe it unduly upset the balance between the parties.

It is contended that the court should have instructed a verdict for defendant because the evidence fails to show that plaintiff became totally and permanently disabled within the meaning of the policy while it was in force. Plaintiff was employed by defendant from May, 1923, to February, 1932. His duties consisted of soliciting insurance and collecting premiums on insurance policies. Dr. Clawson, a qualified and practicing physician, testified that he examined plaintiff several times between April, 1931, and October, 1932; that on each occasion he found the existence of angina pectoris, mitral insufficiency of the heart muscle, chronic bronchitis, and nervous instability. Dr. Anderson examined plaintiff in April, 1931, June, 1932, and October, 1932. Dr. Stevens was called to his home and examined him in January, 1931. Each of them testified to virtually the same condition as that described by Dr. Clawson. Plaintiff, his wife, and four other witnesses each testified that beginning in 1931 he suffered severe attacks of pain; that he was compelled to lie down for two or three hours at a time when thus stricken; that he placed his hand over his heart; that he perspired heavily and looked pale; that when stricken away from home, it was necessary to carry him home and to aid him to enter the residence. Plaintiff testified in detail with respect to the extreme pain in the upper region of the heart; that it traveled upward and extended to his left shoulder and left arm; that it felt as though the heart was being penetrated with a sharp knife; that the attacks recurred sometimes once a week and sometimes once in two weeks; and that he was extremely weak and sore for several days after each attack. The testimony clearly justified the court in submitting the issue to the jury and it abundantly sustains the finding of total and permanent disability within the purview of the policy.

Defendant challenges the verdict and judgment on several grounds. It asserts that the verdict is ambiguous, uncertain, and beyond the issues raised by the pleadings; that the judgment is indefinite, ambiguous, inconsistent, not supported by the pleadings or verdict, and beyond the jurisdiction of the court. It also urges that the court erred in refusing to instruct the jury that its liability was limited to $143.60, that being the amount of one monthly installment. The several contentions emanate from the alternative provision in the insurance contract for payment either in one sum or in installments, and may be disposed of together. Under the terms of the policy, defendant was obligated to pay plaintiff either in one sum or in installments if he became totally...