Davis v. The Travelers Insurance Company

• Decision Date: 05 February 1898
• Docket Number: 10343
• Citation: 59 Kan. 74,52 P. 67
• Parties: EVE DAVIS v. THE TRAVELERS INSURANCE COMPANY
• Court: Kansas Supreme Court

52 P. 67

59 Kan. 74

EVE DAVIS v. THE TRAVELERS INSURANCE COMPANY

No. 10343

Supreme Court of Kansas

February 5, 1898

Decided January, 1898.

Error from Bourbon District Court. J. S. West, Judge.

Judgment reversed.

J. D McCleverty, for plaintiff in error.

Humphrey & Hudson, for defendant in error. C. E. Cory, of counsel.

OPINION

DOSTER, C. J.

This was an action to recover upon a policy of insurance against death by accident. The plaintiff claimed that the death resulted from the injuries of a mule-kick and a fall from a buggy. The defendant claimed that it resulted from causes not covered by the policy, and particularly from the inhalation of illuminating gas, and from an injury received in a railroad accident previous to the execution of the policy. The verdict and the judgment were for the defendant. The plaintiff comes to this court on claims of error occurring at the trial.

The facts as to the several injuries received by the deceased including the inhalation of the gas, were not seriously in dispute, the medical conclusions to be drawn from the occurrence of such injuries being the matters most strenuously controverted. A very lengthy hypothetical case was stated to the principal expert witness for the defendant. Its quotation in print would cover nearly four pages such as these upon which this decision is reported. It detailed, from the defendant's standpoint, and with great minuteness the several injuries of the deceased, his personal and business habits, his apparent state of health, and the incidents of his comings and goings from the time of his first accident to his death, and closed with the interrogatory: "Can you tell what was the cause of his death from that history?" Objection was made to this question, "for the reason that the hypothetical case is not based upon the evidence." This was overruled.

In addition to the specific objection thus made in the court below, it is urged before us that the question is too long, involved, and complex to be remembered and understood by the jury; and also that it called for an opinion by the witness upon the very matter in dispute and under submission to the jury, to wit, the cause of the man's death. Had these objections been made to the court below, so as to give it an opportunity to pass upon them before review by us, they might be found to be well taken. We know that in order to the formation of a satisfactory opinion by a medical expert all pertinent facts from which a generalization can be drawn should be stated, and also that the length of a hypothetical question is very largely in the discretion of the court trying the case (Rogers on Expert Testimony [2d. ed.] § 28; People v. Brown, 53 Mich. 531, 19 N.W. 172); but we think it may be extended to such a great length, and be burdened with such prolixity of detail, as to be confusing rather than enlightening, to the jurors at least, and thus obscure in their minds the essential facts upon which the diagnosis is based.

We are also aware that the rule as generally stated is that a medical witness may give his opinion as to the cause of death. The most, if not all, of the cases out of which this rule has been collected are those of homicide. In such cases an opinion by a medical witness as to the cause of death rarely, if ever, involves the principal question submitted to the jury, to wit, the guilt of the accused. The opinion he expresses is upon the cause of the death, and not as to who caused it. Hence in such cases the witness, though answering the same character of question that was asked in this case passes no opinion upon the principal fact to be tried, but only gives an opinion upon a fact from which the one principally in controversy may be inferred. In this case the principal fact to be tried was the cause of death. An expert opinion as to that cause, if accepted as true, would conclude the whole case; but in cases of homicide an opinion as to the cause of death, even if accepted...