Maryland Casualty Co. v. McCallum

• Decision Date: 24 May 1917
• Docket Number: 4 Div. 655
• Parties: MARYLAND CASUALTY CO. v. McCALLUM.
• Court: Alabama Supreme Court

75 So. 902

200 Ala. 154

MARYLAND CASUALTY CO. v. McCALLUM.

4 Div. 655

Supreme Court of Alabama

May 24, 1917

Appeal from Circuit Court, Covington County; A.H. Alston, Judge.

Action by Jessie V. McCallum against the Maryland Casualty Company on an accident insurance policy upon the life of E. Ben McCallum. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Gardner J., dissenting.

The following are the counts of the complaint mentioned in this opinion:

(2) Plaintiff claims of defendant $1,000 with interest thereon, due on a policy whereby defendant, on the 20th day of January, 1913, insured for a term of one year the life of E. Ben McCallum against bodily injuries, effected directly and independently of all other causes through external violent, and accidental means, for a term of one year. Plaintiff avers that said policy at the expiration of one year was renewed by defendant for one year, and until the 1st day of January, 1916. Plaintiff further avers that she is the beneficiary named in said policy, and that said E. Ben McCallum received bodily injuries effected directly and independently of all other causes, through external, violent and accidental means, on or about the 15th day of July, 1913, which resulted in his death, and within 90 days from the date of the accident, and of which defendant has had due notice.

The third is practically the same as the second, with slight changes in phraseology.

The following assignments of error are referred to in the opinion:

(24) The court below erred in overruling objection by defendant to the question propounded to witness John Maulden: "And tell you that it was given him by Mrs. Charlie Hamilton, and for you to take it with you."

(25) Overruling objection to defendant of the following question to witness A.C. Hamilton: "Did Charlie Hamilton, policeman there at that time, bring you a knife--bring a knife to you about two days before the grand jury met--bring a knife to you and tell you to give it to John Maulden and tell him to carry it with him?"

(26) Overruling objection to question to same witness: "And did you give the knife to Maulden, and tell him what Hamilton told you to tell him?"

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(27) Overruling motion of defendant to exclude answer of witness in the affirmative to the question last set out.

(23) The court erred in overruling objection to defendant to the question, "If the insurance agent was ready to pay it all, then it wasn't money that prevented the autopsy being held, was it?" propounded to Dr. B.C. Stewart.

The following is charge 6, refused to defendant:

The court charges the jury that if they believe the evidence, McCallum did not die from the injuries inflicted by the blows on his head.

157k193 Weapons, Missiles, and Other Instruments.

In action on accident policy, it was proper for jury to know weight and size of sticks used in assault on insured, and sticks, produced and identified, would have been admissible.

Method of impeaching defendant's witness, in action on accident policy held improper.

Henry Opp and Powell, Albritton & Albritton, all of Andalusia, for appellant.

Parks & Prestwood, of Andalusia, for appellee.

SAYRE J.

Action on a policy of accident insurance brought by appellee against appellant. Plaintiff, the beneficiary named in the policy, claimed that the insured came to his death by reason of wounds received in a personal rencounter in which he was wholly free from fault; defendant claimed that insured died of typhoid fever without contribution from wounds which, it contended, were trivial and inconsequential. There was evidence to support both contentions, and it may as well be said here that, whatever may be thought of the general result, there was evidence to support plaintiff's case, and the court committed no error in refusing charge 1, the affirmative charge, requested by defendant.

Counts 2 and 3 follow the code form of action on a policy of life insurance far enough to suggest that the pleader had the form in mind, and we held in National Life & Accident Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45, that that form was not applicable to an action on a policy of accident insurance. Both the counts here in question go further in their description of plaintiff's alleged cause of action than did the count to which our observations were directed in the case supra. The counts here do not follow the form literally and throughout as did the count in that case. They allege that the insured received bodily injuries through external, violent, and accidental means, on, to wit, July 15, 1914, during the life of the policy, of which he died within 90 days, thus showing a fulfillment of the condition upon which defendant's liability depended in the language in which they also allege that condition was expressed in the policy. It was not necessary that the facts and circumstances attending the injury should be alleged. 1 Corp.Jur. 489.

Defendant contended, as we have said, that insured died of typhoid fever, and the physician who attended insured in his last illness testified in support of this contention. In view of the issue thus presented and the infectious nature of insured's alleged disease, to which medical witnesses testified, evidence that none of the customary precautions against the communication of the disease were taken, and that no other member of insured's family had or contracted the disease, had some--it may be slight--probative force. At least, the court is not willing to say that its admission constituted reversible error.

It was proper for the jury to know the weight and size of the sticks used in the assault upon the insured, and the sticks, produced and identified, would have been admissible in evidence. While not the best evidence in any sense that would require their production, the sticks themselves would have furnished a satisfactory illustration and explanation of their own capacity for inflicting a fatal injury, and the court is unable to see any harm in the ruling which permitted plaintiff to offer evidence tending to account for their absence. The objection here taken to this evidence, that it was unsatisfactory, that it did not go far enough, was not taken in the court below, could not have been intelligently made or ruled upon until the evidence on the point was closed. The objection in the trial court was most general in form, and went only to the question of admissibility. At no time was any point taken against this particular evidence that it was wholly ineffectual to prove the fact it was intended to prove.

The objection that the witness Blue was not shown to be an expert in the matter about which he was allowed to testify was not well taken. The witness said he was a surgeon; he did not say he was a physician. In a narrow technical sense surgery may consist in the treatment of injuries, deformities, or diseases by mechanical operations only; but a surgeon must know--the law requires that he know--the progress, manifestations, and results of the diseases and injuries which he treats, and hence we hold that Blue said enough of himself to show that he was qualified to speak as an expert of those matters about which he testified. Nor can the objection to the hypothetical question put to this witness be sustained on the ground that there was no evidence to sustain the assumption that one of the blows received by the insured was on the chest. The witness predicated his answer upon the hypothesis that one of the blows was on the side of the chest. This assumption had support in the evidence.

If the record afforded any tangible evidence that the reference to the Miller-Brent Lumber Company, contained in the several questions to the witness Stewart, was intended or had any effect to prejudice the defense with the jury, a reversal would be ordered on that ground. We have been unable to find any such evidence. It must be that the inference of prejudice has been drawn from local conditions with which counsel are familiar rather than from the record by which alone the court here is informed. In this state of the record the court's ruling on these questions may be justified on the ground that plaintiff was entitled to have the jury know in a general way what manner of man the witness was and the trial...