Maryland Casualty Co. v. Maloney

• Decision Date: 28 June 1915
• Docket Number: 72
• Citation: 178 S.W. 387,119 Ark. 434
• Parties: MARYLAND CASUALTY COMPANY v. MALONEY
• Court: Arkansas Supreme Court

178 S.W. 387

119 Ark. 434

MARYLAND CASUALTY COMPANY v. MALONEY

No. 72

Supreme Court of Arkansas

June 28, 1915

Appeal from Drew Circuit Court; H. W. Wells, Judge; modified and affirmed.

Judgment affirmed.

Williamson & Williamson, for appellant.

1. In all blood-poisoning cases caused from without, there must be a chain of causation from the accident to death, which must have its origin in an abrasion of the skin or wound of some kind. 85 F. 401; 97 N.W. 91; 11 L. R. A. (N. S.) 1069; 8 Id. 68; 5 Id. 926. Where there is no abrasion or wound, there is no septi-caemia, and there can be no recovery. 154 F. 484; 11 L. R. A. (N. S.) 1069; 8 Id. 68. This was a bed sore case and not covered by the policy. The verdict was based on presumption. Juries are not allowed to speculate as to which of two causes produced the injury. 57 N.W. 169; 116 Ark. 82; 92 U.S. 281, etc.

2. Appellee waived her privilege to exclude the testimony of Drs. Smith and Herbert. When once waived it is waived forever. 111 Ark. 559; 4 Wigmore on Ev., §§ 2380 3347, 2388; 98 Ark. 357; 103 Ark. 201; 104 N.Y. 352; 165 S.W 748; 40 Cyc. 2405, (j); 8 A. & E. Ann. Cas. 653; 59 A.D. 369 69 N.Y.S. 551; 109 Cal. 442.

3. It was error to allow the 12 per cent penalty and attorney's fee is excessive. 111 Ark. 570-1; 88 Id. 556; 92 Ark. 378; 155 F. 54.

James C. Knox, Patrick Henry and Robert C. Knox, for appellee.

1. The merits of this case were decided on the former appeal. The court decided the evidence was sufficient, which binds all parties. 99 Ark. 218; 93 Id. 168, etc. On application for a directed verdict, the evidence of the opposite party is admitted to be true. 11 How. 373; 24 A. 992; 47 N.W. 290; 5 Id. 710.

2. There is not two equally probable theories in this case as to the cause. 114 Ark. 112, governs this case. See 107 Ark. 476.

3. Appellee had not lost her right to object to the testimony of Drs. Herbert and Smith. Their testimony was incompetent and a waiver of the privilege on the first trial does not prevent her from claiming it on the second trial. Kirby's Dig., § 3098; 6 L. R. A. (N. S.) 1003; 45 N.W. 977; 59 U.S. (Law Ed.) 210; 156 S.W. 699; 131 P. 534; 85 N.E. 837; 71 N.E. 251; 78 Ga. 733, etc.

4. Appellant was not prejudiced by the exclusion of the testimony. 95 Ark. 155; 82 Id. 214. Besides it was not competent. 103 Ark. 202.

5. The penalty and attorney's fee were properly allowed. The fees were reasonable--not excessive. The statute allows the penalty and a reasonable attorney's fee.

OPINION

MCCULLOCH, C. J.

This is an action to recover upon a policy of accident insurance issued by defendant, Maryland Casualty Company, to Edward S. Maloney, the husband of the plaintiff. It is alleged that plaintiff's husband, while confined to his bed by illness and was being attended by a hired nurse, received an accidental injury to his coccyx bone by the nurse striking it in attempting to place a bed pan under him; that an abrasion of the skin was caused; and that infection started at the place which produced blood poisoning and that his death resulted from it.

The case has been here once before on the appeal of the plaintiff and we reversed the judgment in defendant's favor and remanded the cause for a new trial. The second trial of the case resulted in a verdict in favor of the plaintiff and defendant has appealed.

On the former appeal the case turned principally on the question whether notice of the accident had been given in compliance with the terms of the policy so as to fix the liability on the insurer, and we held that proper notice had been given. Other questions were, however, decided on the appeal, and one of the questions so decided was that there was sufficient evidence to warrant a recovery in plaintiff's favor. The case was tried upon substantially the same testimony as in the former case, with the exception of the testimony of certain physicians which will be mentioned hereafter. We must therefore treat the question as settled that the evidence adduced is sufficient to warrant recovery by the plaintiff.

The only questions worthy of discussion on the present appeal relate to the ruling of the court upon the admissibility of the testimony of two physicians, or rather the competency of the witnesses and the right of the plaintiff to object to the introduction of such testimony at this trial, having allowed the testimony to go to the jury without objection at the former trial.

The defendant offered the testimony of two physicians who attended the deceased during his last illness and offered to establish by them facts and circumstances which would show that deceased did not receive any accidental injury in the region of the coccyx bone or elsewhere, and that his death resulted from another cause. The same testimony was offered by the defendant at the former trial and was admitted in evidence without objection. It is insisted now that the plaintiff waived the privilege of excluding such testimony. The first ground urged for such waiver is that the plaintiff herself made an issue as to the cause of her husband's death, and that that gave the defendant the right to introduce any testimony which tended to meet that issue, even testimony of the attending physicians of deceased.

The argument on this point is based principally upon the decision of this court in National Annuity Association v. McCall, 103 Ark. 201, 146 S.W. 125. But the question involved in that case was entirely different from that involved in the present inquiry. In that case the plaintiff, who was the beneficiary in an insurance policy, had received a certain sum of money from the company which was paid by way of compromise of her claim and in satisfaction of the policy. She signed a written release, but attempted at the trial to escape its effects by showing that its execution was procured by fraudulent statements of the attending physician of the deceased concerning the cause of the death of the insured. The plaintiff adduced testimony to the effect that the adjuster of the company induced her to enter into the compromise and execute the release by bringing before her Dr. Pringle, the attending physician of deceased, who, she claimed, made false representations to her concerning the cause of her husband's death. On the trial of that issue the company offered to prove by the testimony of Dr. Pringle that the statements he made to the plaintiff concerning the cause of her husband's death, at the time she executed the release, were true, but the trial court refused to admit the testimony and we held that that constituted error which called for a reversal of the judgment. Our view of the law which formed the basis of that decision was that the plaintiff had herself made an issue as to the truth or falsity of the statement of the physician, and testified concerning the same, which made it necessary for the introduction of the testimony of the physician himself, and that that constituted a waiver of the privilege. In the opinion we said: "The appellee has herself made competent the testimony of this attending physician by claiming that it was upon his statement that she acted in executing the release, the effect of which she seeks to avoid by reason of the claim that this statement was false. She has therefore required the disclosure by this witness of the cause of her husband's death, and has thereby waived the privilege to object thereto, and her adversary is entitled to the benefit of that waiver."

The principle which controlled in that case has no application here, for the plaintiff had not introduced the physicians, nor had she tendered an issue which made it necessary that they be introduced. The mere fact that she alleged the cause of the accident did not open the way for the introduction of witnesses which it was her privilege under the statute to exclude. There are many of our decisions which are against the view that merely because a right of action is predicated upon an alleged injury of a certain character, the statutory privilege of objecting to the testimony of attending physicians is waived. M. & N. A. Rd. Co. v. Daniels, 98 Ark. 352; K. C. So. Ry. Co. v. Miller, 117 Ark. 396.

We said in the former opinion in this case that the testimony was not competent, but called attention to the fact that no objection to its introduction was made in the trial below. Counsel for the defendant insist that it was unnecessary, therefore, to pass upon the question of the competency of the testimony, and that the language of the opinion with reference to that question was dictum. There is some force in that suggestion, but the question is now squarely presented, and our conclusion is that the trial court was correct in holding that the plaintiff had not waived the right to object to the testimony by introducing testimony concerning the cause of the death of her husband.

The remaining contention is that plaintiff waived her right to object by allowing the testimony to go to the jury in the former trial. In other words, it is contended that the failure to object to the testimony at the former trial operated as a waiver which was irrevocable, and extended through the further stages of the case. That question is one which is by no means free from doubt; and while it is said in some quarters that the authorities are overwhelmingly preponderating in favor of the rule that where there is once a waiver it continues through a subsequent trial, we do not find such to be the case. In two case notes reporting the decision of the Missouri Supreme Court in Elliottv. Kansas City, 198 Mo. 593, 96 S.W 1023, where the rule is announced that a waiver in one trial is irrevocable and becomes effective in another trial, the authorities are fully reviewed and it is shown in each of the...