Loehr v. National Sec. Life Ins. Co., 20760

• Decision Date: 14 May 1969
• Docket Number: No. 20760,No. 1,20760,1
• Citation: 247 N.E.2d 232,144 Ind.App. 503
• Parties: Dorothy LOEHR, Appellant, v. NATIONAL SECURITY LIFE INSURANCE COMPANY, Appellee
• Court: Indiana Appellate Court

Page 232

247 N.E.2d 232

144 Ind.App. 503

Dorothy LOEHR, Appellant, v. NATIONAL SECURITY LIFE INSURANCE COMPANY, Appellee.

No. 20760.

Appellate Court of Indiana, Division No. 1.

May 14, 1969.

Sydney L. Berger, John C. Cox, Evansville, for appellant.

John P. Hancock, Evansville, for appellee.

LOWDERMILK, Presiding Judge.

This is an action brought by plaintiff-appellant, Dorothy Loehr, against the defendant-appellee, National Security Life Insurance Company, for benefits under an insurance policy issued by the appellee, whereby the appellee provided benefits in the event of sickness or accidental injury to the insured, appellant, Dorothy Loehr.

The plaintiff-appellant fell in her home, allegedly sustained personal injuries to her back and neck, and thereupon brought this action against the appellee under the appellee's policy.

The issue were closed by appellee's answer to appellant's first amended complaint and the cause thereafter was tried by jury, which returned a general verdict for the appellee and judgment was duly rendered for the appellee thereon.

Appellant thereupon filed a motion for new trial, which was overruled, and which motion for new trial alleges that, (1) the verdict of the jury is contrary to law; (2) error of law occurring at the trial wherein the court overruled plaintiff's objection to the introduction into evidence of defendant's Exhibits C, D, and E, which were hospital records; (3) the court erred in refusing to give to the jury Instruction No. 7 tendered and requested by the plaintiff and (4) the court erred in refusing to give to the jury Instruction No. 9 tendered and requested by the plaintiff.

The first specification assigned in appellant's motion for new trial was not set out in the argument portion of appellant's brief, nor was it mentioned in oral argument and, therefore, is waived, pursuant to Rule 2--17(h), Rules of the Supreme Court of Indiana, 1967 Revision.

Under the second specification appellant alleges error in the introduction and admission of hospital records into evidence which contain, among other things, an opinion of Dr. Fisher, a neurosurgeon, called in for consultation by appellant's regular doctor as a result of appellant's fall and alleged disability. The appellant's objection to this evidence is based on the grounds that these documents were hearsay and that no proper foundation had been laid for their being introduced into evidence.

Appellant cites and relies on the case of Espenlaub v. State (1937), 210 Ind. 687, 2 N.E.2d 979. In that case the Supreme Court held that hospital records are not admissible into evidence as an exception to the hearsay rule when the doctors who treated a patient and knew the actual medical facts concerning the patint were present and available, and were willing to testify, and where the physician and patient privilege had been waived. However, we are not called upon to decide whether or not the hospital records in the instant case were or were not admissible as an exception to the hearsay rule for the reason that any error in the admission of these medical records was rendered harmless by appellant's failure to object to evidence in the cross examination of Dr. L. B. Miller, appellant's physician, which testimony was substantially the same as given by Dr. Fisher's opinion included in the hospital records admitted into evidence.

The opinion of Dr. Fisher, as shown by the hospital record admitted into evidence, is as follows: 'In my opinion, this is a fatigue syndrome, perhaps associated with osteoarthritis'.

The appellee cross examined Dr. L. B. Miller, appellant's regular physician, which cross examination is, in part, as follows:

'Q. 81 And what is that?

A. I think she has traumatic arthritis of her neck and shoulder. She has possibly some disc syndrome and a chronic whiplash injury.

Q. 82 And the type of arthritis, again, Doctor?

A. Well, we commonly call that traumatic arthritis, but usually it is an osteoarthritis.

Q. 93 And do you know Doctor Fisher's diagnosis?

A. He said essentially the same as I did, if I recall. He talked to me in person. He said that he did think that she was working quite hard and it might be some nervous factor involved too.

Q. 94 Didn't he refer to it as a 'fatigue syndrome'?

A. Possibly, as I recall.'

Appellant also waived the objection to the privileged communication of Dr. Fisher and herself when she failed to object to the cross examination of Dr. Miller, as above set out.

In the case of Howard v. Merker (1920), 73 Ind.App. 400, 127 N.E. 807, the court said:

'It is also claimed that the trial court erred in the admission of certain other evidence; but, whether this evidence was properly admitted or not, the error, if any, is not available, for the reason that other uncontradicted evidence of the same character and to the same effect was introduced without objection.'

See also: Terre Haute, etc. Co. v. Weddle (1915), 183 Ind. 305, 108 N.E. 225; Massachusetts Bonding, etc. Co. v. Free (1919), 71 Ind.App. 275, 124 N.E. 716.

Applying the law as set forth in the above cases, this court holds that there is no reversible error in the admission of the hospital records into evidence.

Under specification 3 the appellant argues that the court erred in refusing to give appellant's tendered Instruction No. 7, which instruction reads as follows, to-wit:

'INSTRUCTION NO. 7

'Where a party to a law suit has in its own keeping or at its command testimony presumably favorable to itself, or where said party has the power and opportunity of producing competent evidence or a competent witness or witnesses readily obtainable by it to prove or disprove any material fact, failure to produce such evidence or testimony raises the presumption that the evidence or testimony if produced would be unfavorable to such party.'

The record discloses that the appellee did not call its agent, who appellant had testified had told her certain facts pertaining to her benefits under the policy. Appellant states in her brief that the appellee's agent was in the courtroom and readily available for testimony and having failed to testify, a presumption was raised that such testimony would have been unfavorable to appellee. This argument is untenable for the reason that appellant had the same right and privilege as the appellee to call the agent as a witness.

'It has not been shown wherein * * * (the witness) was not as much available to appear as a witness of appellants as she was for appellee. The failure to produce a witness when such witness is available to both sides 'is no reason for indulging a presumption against either party." Cauldwell, Inc., et...