Brown v. U.S. Fidelity & Guaranty Co.

• Decision Date: 08 January 1958
• Citation: 147 N.E.2d 160,336 Mass. 609
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Alice M. BROWN, Administratrix, v. UNITED STATES FIDELITY AND GUARANTY CO. Alice M. BROWN, Administratrix, v. METROPOLITAN LIFE INSURANCE CO.

Page 160

147 N.E.2d 160

336 Mass. 609

Alice M. BROWN, Administratrix, v. UNITED STATES FIDELITY AND GUARANTY CO.

Alice M. BROWN, Administratrix, v. METROPOLITAN LIFE INSURANCE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 7, 1957.

Decided Jan. 8, 1958.

Louis Steinberg, Boston (Everett A. Grant, Boston, with him), for plaintiff.

John F. Finnerty, Boston, for United States Fidelity and Guaranty Co.

Eugene Lyne, Boston, for Metropolitan Life Ins. Co.

Before WILKINS, C. J. and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

These two cases were tried together. In each case, the defendant filed a motion for a directed verdict which was denied. There were verdicts for the plaintiff. The trial judge, under leave reserved, entered a verdict for each defendant.

The action against Metropolitan Life Insurance Company (hereinafter called Metropolitan) was to recover under the double indemnity feature of a life insurance policy covering the life of the plaintiff's husband (hereinafter called the insured). The action against United States Fidelity and Guaranty Company (hereinafter called Fidelity) was brought to recover under an accident policy taken out by the insured. The provisions, here relevant, of the two policies were closely similar in all substantial respects. The Metropolitan policy fairly raises the questions now presented for decision. ¹ This policy provided for a special death benefit 'upon receipt at the home office of the company * * * of due proof of the death of the insured as the result of bodily injury effected solely as described below.' The provision thus referred to provided that the extra indemnity 'shall be payable only if the death of the insured results as a consequence of bodily injury effected solely through external, violent, and accidental means within sixty days after such injury independently and exclusively of all other causes. This indemnity shall not be payable if the death of the insured results directly or indirectly from disease or from bodily or mental infirmity.'

The jury, after considering a special question put to them by the trial judge, answered that the accident, mentioned below, was 'the sole cause of death.' The facts stated most favorably to the plaintiff are set out below. ²

The insured was admitted to the Quincy City Hospital on April 8, 1952, following injuries suffered in an accident in which his automobile, after having been hit by another automobile, itself hit a tree. The insured 'hit the steering wheel with a rather big impact.' Upon the day of his admission to the hospital, he had a blood pressure as high as 226/152. The hospital record showed a history of 'a coronary attack around Thanksgiving Day, for which he was admitted and * * * some angina pectoris a few years before that.' The plaintiff was driving with her husband and was also admitted to the hospital as a result of the accident. The insured was discharged on April 16, 1952 (with a blood pressure of 185/120), to 'rest at home.'

On May 21, 1952, the insured was again admitted to the hospital 'complaining of pain in chest' with a blood pressure of 180/108 and with a history of having 'been a coronary case for a certain number of years' and 'of hypertension and coronary insufficiency.' He was on his way to the hospital to take his wife home, when he developed 'chest pain and vomiting.' He died suddenly late the next afternoon, May 22.

The plaintiff testified that the insured 'prior to the accident * * * was generally very nervous' and became 'extremely nervous * * * pitifully so' after the accident; that he 'didn't look well enough to go home' on April 16, when he was discharged from the hospital; and that he remained in a highly nervous state between April 16 and May 21. During this period she saw him every day and found him worried over her health and the family finances. The insured, she said, had 'worked constantly until the date of the accident, as far as she knew.'

A qualified doctor, called by the plaintiff, in a long hypothetical question about the cause of the insured's death, was asked to assume that the insured was 'a man 58 years old who has for some time had a condition of heart hypertension, but is otherwise in reasonably good health' with a hospital record showing 'coronary observation and a 'history of old coronary occlusion and angina' and a diagnosis including 'hypertensive cardiovascular disease, coronary artery disease history.' The witness was also asked to assume facts about the accident, in general as stated above, but with some incidents of the accident stated in exaggerated terms--not appearing otherwise in evidence (for example, that the insured was thrown against the 'steering wheel which was broken' and that the 'car was wrecked'). To this question the doctor answered that in his opinion 'the automobile accident was directly the cause of' the insured's death. The doctor went on to say (1) that the injuries to the insured, who was 'excitable and nervous,' in effect 'caused his blood pressure to rise higher than * * * under normal conditions' thus putting 'an extra strain on his heart muscle, which caused some damage to that muscle,' and (b) that, following his discharge from the hospital and stay at home, 'the excitement of going to the hospital to pick his wife up * * * and of the emotional factors involved * * * again raised his blood pressure to a point where something happened within his heart muscle' so that he had to be treated for his cardiac condition and died.

The doctor conceded that the insured's blood pressure was lower when readmitted to the hospital in May than when discharged in April, and that he did not think that the excitement and emotional factors of going to pick up one's wife would produce a coronary attack in a healthy or normal heart. He further conceded that it happened in this case 'because of the hypertensive cardiovascular disease that was present' and also that '[h]ad he not had the heart disease, the chances are that nothing would have happened to him * * * that the disease of the heart actively coperated with the accident to cause this death.' The witness 'would not have expected * * * [the insured] to die had he not been involved in the * * * accident.' He pointed out that, although the improved blood pressure readings showed that the 'nervousness quieted down,' it had not 'competely disappeared.' The doctor conceded that his 'purely gratuitous assumption of excitment and emotional factors' on the part of the insured on May 21 was not based on personal knowledge that the insured was excited, and that there was no 'support for his assumption' in the hospital records. This assumption, he agreed, 'was an essential part of the basis * * * of his answer to the hypothetical question.'

The death certificate of the insured was introduced in evidence. It showed the cause of death to be 'coronary artery disease' and made no reference to the automobile accident and injuries. An except from the report of post mortem examination also showed the cause of death as 'Coronary artery sclerosis with recent infarction' and showed in various respects serious cardiac defects.

1. The hypothetical question, in view of the exaggerated assumptions already mentioned and its failure to mention specifically the Thanksgiving Day coronary attack (only six months prior to the insured's death), might well have been excluded on the defendants' objection when originally asked, or struck from the record at the time of the defendants' later motion to that effect. See Brownhill v. Kivlin, 317 Mass. 168, 170, 57 N.E.2d 539; Charron's Case, 331 Mass. 519, 522-523, 120 N.E.2d 754; Boston Safe Deposit & Trust Co. v. Blaisdell, 333 Mass. 51, 57, 127 N.E.2d 796, and cases cited. See also Wigmore, Evidence (3rd ed.) § 682. Compare Commonwealth v. Moore, 323 Mass. 70, 74-75, 80 N.E.2d 24; Davis v. Seller, 329 Mass. 385, 389, 108 N.E.2d 656. Also, the answer to the question was admittedly based on a 'gratuitous assumption of excitement and emotional factors' not shown by any evidence. It is unnecessary, however, to decide whether the trial judge erred (see Taylor v. Creeley, 257 Mass. 21, 26-27, 152 N.E. 3; Davis v. Hotels Statler Co. Inc., 327 Mass. 28, 31, 97 N.E.2d 187) in failing to strike the answer to the question. Because it was based upon at least this one important 'gratuitous assumption' not supported in the record, the opinion of the doctor given in answer to the question 'is revealed by the cross-examination to have been no real opinion at all' (see Brownhill v. Kivlin, 317 Mass. 168, 170, 57 N.E.2d 539; Maniscalco v. Director of the Division of Employment Security, 327 Mass. 211, 215-216, 97 N.E.2d 639; Ralph's Case, ...