Independent Life & Acc. Ins. Co. of Jacksonville, Fla. v. Aaron

• Decision Date: 22 August 1968
• Docket Number: 6 Div. 298
• Parties: INDEPENDENT LIFE AND ACCIDENT INSURANCE COMPANY OF JACKSONVILLE, FLORIDA v. Flossie AARON.
• Court: Alabama Supreme Court

Page 847

213 So.2d 847

282 Ala. 685

INDEPENDENT LIFE AND ACCIDENT INSURANCE COMPANY OF JACKSONVILLE, FLORIDA v. Flossie AARON.

6 Div. 298.

Supreme Court of Alabama.

Aug. 22, 1968.

Rehearing Denied Sept. 19, 1968.

London, Yancey, Clark & Allen, Birmingham, for appellant.

Robers, Howard, Redden & Mills, Birmingham, for appellee.

KOHN, Justice.

This is an appeal from an action in the circuit court of Jefferson County, Alabama, wherein plaintiff, as beneficiary under a policy of accidental death insurance, written by the defendant below (appellant here) brought suit for benefits claimed under the policy as a result of the accidental death of the insured, one Paul J. Aaron. The sum claimed was $2,200, and the basis of the claim was that the insured Aaron's death was the result of an accident of which the defendant had proper notice; and, that the sum sued for was due under the policy.

There was one count in the complaint, as follows:

'Plaintiff claims of the defendant the sum of Twenty-Two Hundred Dollars ($2,200.00) due under a policy of insurance on the life of Paul J. Aaron and in which the plaintiff is beneficiary. Plaintiff avers that Paul J. Aaron is deceased as the result of an accident of which the defendant has had notice and that said sum due under said policy remains due and unpaid, together with the interest thereon.'

The defendant's plea in abatement, previously filed, was overruled by the court. The defendant then filed a demurrer which was overruled, and the pleadings were thereafter in short by consent. The case was submitted to the jury, and a verdict was rendered in behalf of plaintiff for $2,370.50, the amount sued for plus interest. Judgment was thereupon rendered.

The defendant filed a motion to set aside the verdict, which motion was overruled by the trial court. Defendant's motion for a new trial was also overruled. Thereupon, defendant properly filed its appeal to this court.

There are twenty-eight assignments of error on this appeal. Of the assignments of error argued here, assignments of error one through five relate to the refusal of the court below to give certain specified written charges requested. Assignments of error six and seven relate to the refusal of the court below to give the affirmative charge, as requested. Assignments of error twelve, thirteen and fourteen relate to the refusal of the court below to give certain written charges to the effect that proof of death resulting from trauma raises no presumption of death by accident. Assignment of error sixteen relates to a ruling of the court on defendant's objection to a question propounded to an expert witness. Assignment of error seventeen also relates to a ruling of the court to a question propounded to an expert witness. Assignments of error nineteen and twenty pertain to the action of the court below in overruling defendant's objection to certain testimony of the expert witness. Assignments of error twenty-one, twenty-two, twenty-three and twenty-four pertain to the action of the court below in overruling objections and motions of defendant with respect to the testimony of the expert witness. Assignment of error twenty-seven relates to the action of the trial court in overruling defendant's motion to set aside the judgment, and assignment of error twenty-eight relates to the action of the trial court in overruling the defendant's motion for a new trial. We will take up these assignments of error that were argued in the order related.

The issue really hinges upon whether or not one Andrew Vines, whose testimony was primarily relied upon by the plaintiff to prove her case was, in effect, an expert witness.

The witness, Andrew Vines, testified that he is the deputy coroner for Jefferson County, handling the matters, connected with the coroner's office, that arise in the Bessemer Division of the county. His job requires him to investigate and examine persons who have met their deaths under unusual circumstances. He stated that he averaged viewing thirty-five bodies per month, a large percentage of which, five to ten per month, had sustained cuts, wounds, bruises or injuries; that he had occasion to examine these bodies and study them to determine the cause of death. He further stated that he had had some experience in the sheriff's office; that he had been to college for some two and a half years; that he felt that his study of zoology had helped him a lot in his work; also, his study of anatomy on his own; that he had had no formal training in the study of anatomy, and no formal training in the study of medicine, and was not a doctor.

The witness, Vines, testified that he investigated the death of Paul J. Aaron, whose manner of death was the issue in this case. That he made a photograph of Aaron's body at the funeral home, and that he had not seen the body before it was moved from the place where it was found. The witness then testified as to observing certain lacerations on the cheek, a long indentation above the laceration running downward, two cuts beneath the chin on one side of the dead man's neck, bruised spots about the ears, and a bruise under the right eye. The record discloses that after the witness', Vines', initial observation of the body, it was taken to the hospital after being unclothed at the funeral home. An autopsy was performed at the hospital. The witness, Vines, testified that he relied heavily on autopsies for making determinations of the cause of death, unless there existed a prior history of serious illness, or that the cause was just completely obvious; that he did not perform autopsies himself, but was present when the autopsies were made; that he did not direct or in any way control what went on at autopsies, other than to furnish case histories, and perhaps instruct the pathologist that there was a bullet in the body or that one could be suspected in certain investigations.

As regards the autopsy on the deceased Aaron, the witness, Vines, was present at the autopsy, but only gave the case history which was based on someone else's compilation. The autopsy report was not introduced in evidence. The witness, Vines admitted having no direct knowledge as to the condition of the body prior to the time he saw it. We do not think it is important to go into the details concerning the depths of the cuts, or a detailed discussion of the abrasions.

After listening to the testimony of the qualifications of the witness, Vines, the trial court, over the objection of the defendant, qualified Vines as an expert; and, over the objection of the defendant, allowed the witness, Vines, as an expert, to give his opinion as to the condition of the body when he observed it, and the cause of death.

The real basis for the assignments of error related primarity to the trial court permitting the witness, Vines, the deputy coroner, to testify as to the cuts and bruises on the body of the deceased, after it had been moved from the scene of death to the funeral home. And, further, in allowing the expert witness', Vines' opinion, as to the cause of death, which was based, to some extent, upon the autopsy report, and subsequent autopsy reports not in evidence. Further error is claimed by appellant in the refusal of the trial court to give certain written charges.

Whether a witness possesses the requisite qualifications to be an expert is a primary question largely within the discretion of the trial court. King v. State, 266 Ala. 232(5), 95 So.2d 816.

The courts of this state have long held that to qualify as an expert witness, it must appear that by study, practice, experience, or observation, as to a particular subject matter, the witness has acquired a knowledge beyond that of ordinary witnesses. Hicks v. State, 247 Ala. 439, 25 So.2d 139; Thomas v. State, 249 Ala. 358, 31 So.2d 71.

It is our view that a proper predicate was laid for the testimony of the witness, Vines, for, in our opinion, he qualified as an expert since he had acquired knowledge beyond that of an ordinary person on the subject at issue. It is obvious that one expert may have more expertise than another. Specifically, a medical doctor, a neurosurgeon, or a pathologist, no doubt, would have greater knowledge on this subject than the witness, Vines, but the witness, Vines, was qualified. Maund v. State, 254 Ala. 452, 48 So.2d 553; Phillips v. State, 248 Ala. 510, 28 So.2d 542.

Since the witness, Vines, was qualified as an expert, no error resulted in permitting him to testify as to the extent of injuries, or to give his opinion as to the cause of death resulting therefrom. Johnson v. State, 272 Ala. 633, 133 So.2d 53.

Assignment of Error No. 1.

This assignment charges error in that the trial court refused to give the following written charge:

'B. I charge you, gentlemen of the jury, that you are not entitled to give any weight to the testimony of any expert witness in this case which is based in whole or substantially in part, on facts not in evidence or within the witnesses' personal knowledge.'

Since the witness qualified as an expert, it was proper for him to have an opinion as given. This charge was an attempt to have the court impair or limit the opinion of the expert witness, and to a certain extent disregard the opinion of the expert. Hyde v. Starnes, 247 Ala. 26, 22 So.2d 421. Furthermore, under the evidence in this case this charge would certainly not enlighten the jury, but would confuse the jury.

Assignment of Error No. 2.

This assignment is based on the refusal of the trial court to give the following written charge:

'C. I charge you gentlemen of the jury that you should disregard the testimony of any expert witness which is based on facts not in evidence in this case and if you are reasonably satisfied from the evidence in this case that Deputy Coroner Vines based his opinion concerning the cause of death of Paul J. Aaron either wholly or substantially on the autopsy report, then you should disregard such testimony.'

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