Killings v. Metropolitan Life Ins. Co

• Decision Date: 02 January 1940
• Docket Number: 33885
• Court: Mississippi Supreme Court
• Parties: KILLINGS v. METROPOLITAN LIFE INS. CO

192 So. 577

187 Miss. 265

KILLINGS v. METROPOLITAN LIFE INS. CO

No. 33885

Supreme Court of Mississippi

January 2, 1940

APPEAL from circuit court of Jones county HON.W. J. PACK, Judge.

Action by Sam Killings against the Metropolitan Life Insurance Company to recover total permanent disability benefits under an employees' group insurance policy. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

F. B Collins and Albert E. Easterling, both of Laurel, for appellant.

We earnestly insist that the verdict of the jury was contrary to the law and the testimony and that the lower court should have sustained appellant's motion to set aside the verdict and order a new trial and that its refusal to do so was error.

The court permitted counsel for appellee, on cross-examination of Dr. Butler, a witness for appellant, to examine Dr. Butler at length as to his testimony in several other cases with reference to other litigations and to go into the particulars of those cases. And when counsel for appellant undertook to examine Dr. Butler as to the particulars of these cases the court would not permit it; whereupon counsel for appellant moved the court to exclude all the evidence of Dr. Butler brought out on cross-examination by counsel for appellee with reference to particulars in other cases, and the court overruled this motion. Counsel for appellant then moved the court to strike one member from the panel and report a mistrial, and the court overruled this motion. This action of the court was clearly erroneous and was highly prejudicial to appellant's cause.

The court erred in granting Instructions Nos. 3, 6, and 7.

Instruction No. 3 is as follows: "The court instructs the jury for the defendant that the fact that the plaintiff has not introduced as a witness Dr. M. W. Waldrup will justify the jury in inferring that had Dr. Waldrup been introduced his testimony would not have been favorable to the plaintiff."

Instruction No. 6 is in the following language: "The court instructs the jury for the defendant that under the law of Mississippi the defendant cannot offer as a witness any doctor to testify to anything learned by him of the plaintiff's physical condition while the relation of physician and patient existed between him and plaintiff."

Instruction No. 7 is in this language: "The court instructs the jury for the defendant that under the law the defendant has no right to cause the plaintiff to submit to an examination by a physician of its choice or any other physician and the defendant has no right under the law to introduce as a witness any physician who has examined plaintiff at plaintiff's instance."

Sec 1536, Miss. Code of 1930.

We say without fear of contradiction that the weight of authorities support the proposition; that in case of a privileged witness that the common law rule permitting an inference to be drawn from failure of a party to call a witness does not apply, but the weight of authority holds that in case of privileged communication, or where there is a legal prohibition of calling a particular witness, that no such inference is permitted or can be drawn.

16 Cyc 1062; Sugarman v. Brengel, 68 N.Y.App.Div. 377, 74 N.Y.S. 167; Haynes v. McRae, 101 Ala. 318, 13 So. 270; Pollak v. Harmon, 94 Ala. 420, 10 So. 156; Patton v. Rambo, 20 Ala. 485; Mooney v. Holcomb, 15 Ore. 639, 16 P. 716; Norfolk, etc., R. Co. v. Brown, 91 Va. 668, 22 S.E. 496; Ellis v. Sanford, 106 Iowa 743, 75 N.W. 660; Higman v. Stewart, 38 Mich. 513; Meagley v. Hoyt, 125 N.Y. 771, 26 N.E. 719; Promk v. Brooklyn Heights R. Co., 68 N.Y.App.Div. 390, 74 N.Y.S. 375.

In 22 C. J., page 124, Section 58, the author in discussing this rule has this to say: "The more generally accepted view is that no unfavorable inference arises from a party's failure to produce, or refusal to consent to the admission of, testimony of a witness as to privileged communication between himself and such party."

Pa. R. R. Co. v. Durkee, 147 F. 99, 77 C. C. A. 107, 8 Ann. Cas. 790; Cook v. Los Angeles R. R. Corp., 169 Cal. 113, 145 P. 1013; Brackney v. Eagle, 156 Ind. 535, 60 N.E. 303; Lauer v. Banning, 152 Iowa 99, 131 N.W. 783; National German-American Bank v. Lawrence, 77 Minn. 282, 79 N.W. 1016, 80 N.W. 363; Johnson v. State, 63 Miss. 313; Arnold v. Maryville, 110 Mo.App. 254, 85 S.W. 107; Lane v. Spokane Falls, etc., R. R. Co., 21 Wash. 119, 57 P. 367, 75 Am. St. Rep. 821, 46 L.R.A. 153; Wentworth v. Lloyd, 10 H. L. Cas. 589, 11 Reprint 1154; Rump v. Woods, 50 Ind.App. 347, 98 N.E. 368.

This court has consistently held that error in granting erroneous instructions cannot be cured by granting other instructions conflicting therewith.

Herndon v. Henderson, 41 Miss. 584; Solomon v. City Compress Co., 69 Miss. 319, 12 So. 339; Kans. City M. & B. R. R. Co. v. Lilly, 8 So. 644; I. C. R. R. Co. v. McGowen, 46 So. 55, 92 Miss. 603; Y. & M. V. R. R. Co. v. Cornelius, 95 So. 90, 131 Miss. 37; Hinds v. Lockhart, 105 So. 449; C. & G. Ry. Co. v. Phillips, 133 So. 123, 160 Miss. 390; Jefferson Std. Life Ins. Co. v. Jeffcoats, 143 So. 842, 164 Miss. 659; Herod v. Carroll, 157 So. 533, 171 Miss. 217.

Welch & Cooper, of Laurel, and Wells, Wells & Lipscomb, of Jackson, for appellee.

The trial court committed no error in overruling appellant's motion for a new trial, which motion was based on the ground that the verdict of the jury was against the overwhelming weight of the evidence, and contrary to the law.

Dickson v. Parker, 3 How. 219; Stoval v. Farmers & Merchants Bank, 8 S. & M. (16 Miss.), 305, 46 Am. Dec. 85; Prewett v. Coopwood, 30 Miss. 369; Buckingham v. Walters, 48 Miss. 609; Cox v. Tucker, 97 So. 721, 133 Miss. 378; Gillespie v. Doty, 135 So. 211, 160 Miss. 684; Miss. Power & Light Co. v. Smith, 153 So. 376, 169. Miss. 447; Shelton v. Underwood, 163 So. 826, 174 Miss. 169; Universal Truck Loading Co. v. Taylor, 172 So. 756, 178 Miss. 143.

The court properly overruled plaintiff's motion to exclude certain testimony of Dr. J. C. Butler.

Skinner v. Collier, 4 How. (5 Miss.), 396; Edge v. Keith, 13 S. & M. (21 Miss.), 295; N. O. M. & C. R. Co. v. Mauldin, 60 So. 211, 103 Miss. 244; Wingo Ellet & Crump Shoe Co. v. Naaman, 167 So. 634, 175 Miss. 468.

The court committed no error in granting the defendant the instructions complained of.

22 C. J. 124, Sec. 59; 20 Am. Jur. 192, Secs. 187-188; Robinson v. Haydel, 171 So. 7, 177 Miss. 233; Griggs v. Saginaw & F. Ry. Co., 162 N.W. 960, 196 Mich. 258; Sabowsky v. Coney Island & B. R. Co., 160 N.Y.S. 386; Meditz v. Liggett & Myers Tobacco Co., 3 N.Y.S.2d 357; Gardner v. Benedict, 75 Hun 204, 27 N.Y.S. 3; Waeckerly v. Colonial Baking Co. (Mo.), 67 S.W.2d 779; Porter v. C. B. & Q. Ry. Co., 28 S.W.2d 1035, 325 Mo. 381; Donet v. Prudential, 23 S.W.2d 1104; Evans v. Trenton, 20 S.W. 614, 112 Mo. 390; McClanahan v. St. Louis, etc., Ry. Co., 147 Mo.App. 386, 126. S.W. 535; Nelson v. Public. Service Transport Co., 135 A. 467, 5 N.J. Misc. 73; Letts v. Halgate, 165 A. 222, 53 R. I. 198; Vaughn v. Memorial Hospital, 130 S.E. 481, 100 W.Va. 290.

If the instructions complained of were erroneous, they were cured by plaintiff's instructions.

Ellis v. Ellis, 134 So. 150, 160 Miss. 345; Teche Lines v. Keller, 165 So. 303, 174 Miss. 527.

If any errors were committed by the trial court in granting the defendant the instructions complained of the error is of no consequence since the defendant was entitled to a peremptory instruction.

Williams v. McLain, 176 So. 717, 180 Miss. 6; Mutual Ben. Health & Acc. Assn. v. Johnson, 186 So. 297; Teche Lines v. Bounds, 179 So. 747, 182 Miss. 638; Y. & M. V. R. R. Co. v. Lamensdorf, 178 So. 80, 180 Miss. 426; Mo. Pac. Transport Co. v. Beard, 176 So. 156, 179 Miss. 764; C. & G. R. R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; Citizens Bank of Coldwater v. Calicott, 174 So. 78, 178 Miss. 747.

Anderson, J., Ethridge, J., specially concurring. McGowen, J., dissenting. Smith, C. J., concurs.

OPINION

Anderson, J.

Appellant brought this action against appellee in the circuit court of Jones County on an insurance policy to recover certain benefits therein provided based upon alleged total and permanent disability. The particular provision of the policy upon which the suit was based follows: "Any employee insured under this plan who shall become wholly and permanently disabled while in our employ before reaching the age of 60, either by accidental injury or disease, and is thereby permanently, continuously and wholly prevented from pursuing any and all gainful occupation, will be regarded as a claimant by the Metropolitan Life Insurance Company. Six months after the receipt of due proof of such disablement, the Insurance Company will begin making payments of the amount of insurance under any one of the following plans at the option of the person insured."

There was a verdict and judgment for appellee, from which judgment appellant prosecutes this appeal.

Appellant was an employee of the Gilchrist-Fordney Company, which company held a group insurance policy in appellee company for the benefit of its employees. Under the terms of the policy certificates of insurance were required to be and were issued to the employees. These certificates contained among other provisions the one above set out. The Gilchrist-Fordney Company went out of business the latter part of July, 1937. Appellant was at that time and had been for some years before one of its employees. He undertook to show that while so employed and between the first day of May, 1937, and the time his employer went out of business, he became as the result of sickness totally and permanently disabled, being at the time under sixty years. There was substantial evidence to establish appellant's case. On the other...