Ellis v. Kansas City Life Ins. Co.

• Decision Date: 02 June 1938
• Docket Number: 14700.
• Parties: ELLIS v. KANSAS CITY LIFE INS. CO.
• Court: South Carolina Supreme Court

197 S.E. 398

187 S.C. 334

ELLIS v. KANSAS CITY LIFE INS. CO.

No. 14700.

Supreme Court of South Carolina

June 2, 1938

Appeal from Common Pleas Circuit Court, Hampton County; E. C Dennis, Judge.

Action by James L. Ellis against the Kansas City Life Insurance Company on a disability clause of a certificate issued under a group life insurance policy. From an adverse judgment, the defendant appeals.

Reversed and remanded for retrial.

Benet Shand & McGowan, of Columbia, and Randolph Murdaugh, of Hampton, for appellant.

George Warren, of Hampton, for respondent.

BONHAM Justice.

The respondent was insured under a certificate issued under a group policy to National Rural Letter Carriers Association by the Continental Life Insurance Company; the appellant, Kansas City Life Insurance Company, assumed the liability of the Continental Life Insurance Company under the said certificate. The amount of the insurance on the life of the respondent was $2000.00, and the policy contained a provision for the payment of benefits upon proof of total and permanent disability arising from bodily injury or disease.

About the ------ day of October, 1936, respondent furnished to the appellant what it is alleged was "proper proof" of said total and permanent disability. The appellant denied liability, and this action followed.

The prayer of the complaint is for Three Hundred Six and 24/100 ($306.24) Dollars, for disability benefits for the months of January, February and March 1937, and that the appellant be required to pay the respondent the sum of One Hundred Two and 08/100 ($102.08) Dollars per month until twenty consecutive monthly payments have been made, inclusive of the payments now due.

The answer denied liability.

The case was heard by Judge Dennis, with a jury. Motions for directed verdict and new trial were made by the defendant and refused.

The Court directed the jury to find simply for the plaintiff or for the defendant. A verdict was rendered as follows: "We find for the plaintiff." The Court overruled a motion for new trial, and in the same order provided: "That the plaintiff have judgment against the defendant for the sum of Three Hundred Six and 24/100 Dollars, with interest * * *. That the defendant do pay to the plaintiff on the first day of each month after March 1, 1937, the sum of One Hundred Two and 08/100 Dollars, with accrued interest, until twenty consecutive monthly payments have been made, inclusive of the payments mentioned above for the months of January, February and March 1937."

The defendant appeals upon grounds stated in four exceptions.

The first exception charges error for refusing the motion for directed verdict, which was predicated on the ground that there was no evidence to show that the plaintiff was totally and permanently disabled within the provisions of the certificate of insurance relating to total and permanent disability.

We think the testimony given by the daughter of the plaintiff, Emma Bell Ellis, furnished evidence which made it obligatory on the trial Judge to submit to the jury the question of total and permanent disability. The Court takes this occasion to re-affirm the rule laid down in the cases of Hickman v. Aetna Life Ins. Co., 166 S.C. 316 , 164 S.E. 878; DuRant v. Aetna Life Ins. Co., 166 S.C. 367, 164 S.E. 881; Owens v. Sovereign Camp, W.O.W., 174 S.C. 514, 178 S.E. 125; Morgan v. Travelers' Ins. Co., 172 S.C. 404, 174 S.E. 235; and Stewart v. Pioneer Pyramid Life Ins. Co., 177 S.C. 132, 180 S.E. 889, which rule is to the effect that the opinion of the doctor that the plaintiff was totally and permanently disabled can have no probative value in the face of evidence of the physical fact that the plaintiff was able, after he was alleged to be disabled, to perform the same sort of work he was accustomed to do.

In the case at bar, the Judge placed his refusal to grant the defendant's motion for directed verdict on the testimony of Emma Bell Ellis, excluding that of the doctor. Hence, the rule does not apply to his action in refusing the motion.

The second exception presents a more serious proposition for our consideration. It is as follows:

"His Honor erred in permitting plaintiff's counsel, on cross examination * * * to ask the following hypothetical question:

'Q. What about a patient that comes to you, you examine him, say he is about 49 years old, you find him highly nervous not from allonal, morphine, liquor or anything of that kind, you have just examined him, you treat him from July to February when you first examined his blood pressure it was 200, he complained of a severe pain in his neck and head, at that time he was highly nervous, he had an accelerated pulse, and from July to February lost 35 pounds in weight, and his blood pressure was 240 in February, would you consider that a man in that condition is disabled?"'

This hypothetical question was based either upon the facts in evidence in the case, or upon the opinion expressed by plaintiff's witness Dr. Peeples.

If it was predicated upon the evidence in the case, then that evidence must be correctly stated in the question. In overruling the objection to the question, the Court said: "I do not think he has got to base a hypothetical question exactly on the evidence. He can ask any hypothetical question that he pleases to ask on cross examination. If those facts fit this case, and if they do not fit the case you can argue it to the jury. I cannot require him to remember the evidence as taken down by the stenographer in framing his question. If the facts do not fit this case, you can argue that to the jury. I still think that counsel can ask any hypothetical question that he wants to ask, whether it is based on the testimony in this case or not. Now go ahead."

We think this ruling is erroneous. If the question attempts to state the testimony, or evidence, it must state it correctly; if it is stated upon alleged facts, not in proof, it is but the suggestion of counsel's mind and can furnish no basis for the jury's determination of the question of plaintiff's disability. If the question is framed upon the suggestions of the opinion of Dr. Peeples, plaintiff's expert witness, it is erroneous because Dr. Tuten, defendant's expert witness, is not allowed to give his expert opinion founded upon the opinion of another expert. It is uncontradicted that Dr. Tuten had never examined the plaintiff.

As to the issue that the question as framed does not contain the evidence in the record, it would seem that the comments of the presiding Judge practically admit that. An examination of the language of the hypothetical question and of the evidence in the record, shows that neither Dr. Peeples, nor any other witness, testified that the plaintiff never took allonal, morphine, liquor or anything of that kind, and Dr. Peeples did not treat plaintiff from July to February, nor did Dr. Peeples say plaintiff's blood pressure was 240 in February. Therefore, these statements in the hypothetical question propounded to Dr. Tuten are incorrect.

"Hypothetical Questions-Assumption of facts in putting a question may be regarded as a test of whether a witness is being examined as an expert. The expert, properly so called, is asked what would be his judgment upon all or any prescribed part of the facts, as to which evidence has been lawfully received, or which has been admitted, assuming that they are true; provided that a sufficient number of facts are assumed to enable the witness to give an intelligent opinion. The witness having no facts in mind as the result of observation, it is in this way alone that a proper basis for a reasonable judgment can be furnished, and the witness cannot add to the hypothetical question facts within his own knowledge and not in evidence. The requirement that the question should be in hypothetical form, stating fact of which there is some evidence in the case, continues throughout the examination of the expert, * * *. Different hypotheses may be submitted to the witness for different parties, provided the facts embraced in each hypothesis have some support in the evidence." (Italics added) 22 C.J. 706-708.

"A Hypothetical question which includes, with other facts, the opinion of another expert is improper." Ibid, page 709.

"A question 'upon the evidence' should never be permitted where the facts are in dispute, for the reason that such a practice necessarily involves an invasion of the province of the jury." Ibid, page 719.

It was held in the case of Mt. Royal Cab Co., Inc., v. William E. Dolan, 168 Md. 633, 179 A. 54, 98 A.L.R. 1106, that "The opinion of an expert,...