Life Ins. Co. Of Va. v. Brockman

• Decision Date: 12 June 1939
• Citation: 3 S.E.2d 480
• Court: Virginia Supreme Court
• Parties: LIFE INS. CO. OF VIRGINIA. v. BROCKMAN.

3 S.E.2d 480

LIFE INS. CO. OF VIRGINIA.

v.BROCKMAN.

Supreme Court of Appeals of Virginia.

June 12, 1939.

Error to Corporation Court of Danville; Henry C. Leigh, Judge.

Action by Myrene G. Brockman against the Life Insurance Company of Virginia to recover on a life policy. To review ajudgment for the plaintiff, defendant brings error. Judgment affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, and EGGLESTON, JJ.

Harris, Harvey & Brown, of Danville, for plaintiff in error.

Carter & Williams, of Danville, for defendant in error.

HUDGINS, Justice.

This action was instituted against the Life Insurance Company of Virginia to recover $1,000, the amount of a policy issued on the life of Richard S. Brockman for the benefit of his wife, Myrene G. Brockman. The jury returned a verdict for plaintiff, on which the trial court entered judgment. To the judgment of the trial court, the Life Insurance Company of Virginia obtained this writ of error.

It appears that Richard S. Brockman, for sometime immediately prior to his death, had been on a drinking spree. While on this spree he had a quarrel with his wife, who, on January 3, 1938, left home and went to a neighbor's to spend the night. Early on the morning of January 4, 1938, Brockman's body was found partly clothed, lying on a pallet in a small bathroom with the windows and doors shut. Illuminating gas was escaping from a small gas stove used for the purpose of heating the bathroom. From the evidence introduced the jury could have found that death was the result of alcoholic poisoning, or that it was due to asphyxiation from illuminating gas. If the jury believed that death was caused by asphyxiation, then it became necessary for them to determine whether the accused turned on the gas jet to the stove with intent to commit suicide. Defendant concedes that the evidence in the record was sufficient to carry each of these questions to the jury, hence the petition for a writ of error concludes with a prayer asking that a new trial be granted for errors committed by the trial court in the admission and exclusion of evidence, and for erroneous instructions given to the jury.

The first error assigned is to the ruling of the court excluding a sworn statement, signed by Dr. H. A. Wiseman, from the jury's consideration.

Defendant requires three sets of interrogatories to be answered on forms furnished by it in order to establish proof of death. One set of these interrogatories is framed to be answered by claimant under the policy, one set by the attending 'physician, and one set by some responsible third person who knew the deceased. Each set of interrogatories is on a printed form furnished by defendant with blank space after the questions for the answers of those signing. In claimant's "Statement No. 1, " introduced in evidence and containing the signature of Myrene G. Brockman, there is found this printed question, "Cause of death, " and the written answer, "See Statement No. 2." Defendant offered to introduce in evidence what it contended was "Statement No. 2, " referred to in the set of interrogatories signed by claimant. This statement, entitled "No. 2 Physician's Statement, " is signed by "H. A. Wiseman, M. D., " and contains the printed question, "What was the immediate cause of death?" and the written answer, "Asphyxiation from illuminating gas."

Plaintiff objected to the introduction of this statement of Dr. Wiseman, on the ground that it had not been obtained by her, and that she knew nothing of its contents. When this objection was raised, E. W. Trainum, an agent for defendant, was asked a direct question as to how this Wiseman statement was obtained, and replied, "The physician's statement by Dr. Wiseman was obtained by one of my representatives in the office, and sent to our home office." Thereupon the trial court ruled that the statement was not admissible, and no further evidence was introduced to show that plaintiff had ever seen or heard of it. The mere statement of the circumstances under which this certificate was obtained shows conclusively that the ruling of the trial judge thereon was correct.

Plaintiff introduced, as part of its proof of death sent to the insurance company, a certificate signed by Dr. J. M. Robinson, the family physician, in which it was stated that the cause of death was "apparently gas asphyxiation." There was no objection to this certificate and it was submitted to the jury for its consideration.

Defendant's attorney, on cross examination, asked Dr. Robinson whether he was still of the opinion that death was apparently due to gas asphyxiation, to which he replied that he was. On re-direct ex-amination the doctor stated that his examination of the body was confined to the one purpose of ascertaining whether life was entirely extinct. When he found that it was, after suggesting that the coroner be called, he immediately left Brockman's home. His opinion as to the cause of death was not a professional one, but was based entirely on conditions and circumstances which could be observed by a layman as well as a doctor. The trial court thereupon sustained a motion to exclude the doctor's medical opinion as the cause of death.

If an opinion of an expert is not based upon his special training and knowledge, such opinion is of no more help to the jury than that of a layman. The jury was given the benefit of every pertinent fact known to and observed by Dr. Robinson when he entered the room and examined the body. There is no merit in this, the second assignment of error.

Dr. H. A. Wiseman, as coroner of the city of Danville, examined the body about 9:00 a. m., January 4, 1938, an hour or more after the body had been viewed by Dr. Robinson. He was called as a witness for defendant and gave a detailed statement of the facts observed by him, and his professional opinion as to the cause of death. During his examination the defendant offered as evidence Dr. Wiseman's sworn statement as a coroner, certified by R. W. Garnett, registrar for the city of Danville, in which it appeared that Dr. Wiseman had stated that death was...