Metropolitan Life Ins. Co. v. Armstrong

• Decision Date: 13 August 1936
• Docket Number: No. 10601.,10601.
• Parties: METROPOLITAN LIFE INS. CO. v. ARMSTRONG.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F.2d 187 (1936)

METROPOLITAN LIFE INS. CO. v. ARMSTRONG.

No. 10601.

Circuit Court of Appeals, Eighth Circuit.

August 13, 1936.

COPYRIGHT MATERIAL OMITTED

Emmet S. Brumbaugh, of Omaha, Neb. (Harley G. Moorhead, of Omaha, Neb., on the brief), for appellant.

Sidney W. Smith, of Omaha, Neb., for appellee.

Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.

GARDNER, Circuit Judge.

This was an action by appellee against appellant to recover on the double indemnity provisions of two life insurance policies in which appellant was the insurer, Charles D. Armstrong the insured, and appellee the beneficiary. The parties will be referred to as they appeared below.

The double indemnity provisions obligated defendant to pay double the amount of insurance if it received due proof of the death of the insured as the result of bodily injury, effected solely through external, violent, and accidental means, within sixty days after the injury, independently and exclusively of all other causes. Double indemnity was not payable if the death of the insured resulted directly or indirectly from certain designated causes, among them being self-destruction, whether sane or insane. The defendant's plea was suicide. Plaintiff contended that the evidence showed accidental death by monoxide poisoning, while defendant contended that the evidence showed intentional suicide by monoxide poisoning. The sufficiency of the evidence to sustain the verdict was not challenged below by motion for a directed verdict, and hence cannot be raised here, but we must assume that this issue, under the evidence, was a proper one for the jury.

Succinctly stated, the verdict establishes the following material facts: Insured, Charles D. Armstrong, lived in Omaha, Neb. He was a strong, energetic man, fifty-six years old, engaged in the real estate business. About 2 o'clock in the afternoon of February 18, 1933, he went to a lawyer's office in Omaha, to attend a conference relative to some litigation in which he was interested. About 4:15 p. m., he left the conference, got his automobile, and went to a residence property at 5011 Western avenue in connection with his business, and was seen to drive into the garage at that place at 20 or 25 minutes before 5 o'clock. The tire chains were then on his car. At about 5 p. m. he was found dead or dying in the garage, lying near the left wheel of the car. The doors of the garage were closed, the engine was running, the garage was full of smoke, and the left rear wheel was jacked up. A chain was lying loose on the wheel as though just unfastened; the jack was in place near the axle; the handle of the jack and a pair of pliers were lying near Armstrong. All the other wheels of the car were resting on the garage floor. The chain of the right wheel was lying in a heap beside it. When found, Armstrong had a bruise on his forehead, which had not been seen before. Death was caused by monoxide poisoning. The jury found by their verdict that the death was accidental and not suicidal.

Defendant seeks reversal on the ground that the court committed error: (1) In various rulings on the admissibility of evidence; (2) in one of its instructions; and (3) in allowing an excessive rate of interest on the sum due.

1. We shall first consider the challenged rulings of the court on the admissibility of evidence.

(1) Mr. Daniels, who had been well acquainted with the insured for a period of twenty-five or thirty years, called as a witness on behalf of plaintiff, was asked: "What was Mr. Armstrong's character?" This was objected to as incompetent, irrelevant, and immaterial, and not an issue in the case. The objection was overruled, but no exception was taken to the ruling. In the absence of such exception, the alleged error will not be reviewed. Lahman v. Burnes Nat. Bank (C.C.A. 8) 20 F. (2d) 897; College Inn Food Products Co. v. Loudon Packing Co. (C.C.A. 7) 65 F. (2d) 883; Jordy v. Dowling Co. (C.C.A. 5) 30 F.(2d) 937; Newport News & M. V. Co. v. Pace, 158 U.S. 36, 15 S.Ct. 743, 39 L.Ed. 887.

(2) Dr. Bliss, called as a witness for plaintiff, in rebuttal, after defendant had shown that the insured had diabetes, was asked: "Q. What is the fact, Doctor, as to whether a person having diabetes and keeping it under control by following his doctor's advice, as to his diet, as to whether such a person would live out his life's expectancy?"

This was objected to as calling for a conclusion of the witness and not including other factors in this case shown to be present. The objection was overruled, and the doctor answered as follows: "A. Of course, diabetes is a serious disease and improper care means a shortening of the life very materially. Under proper management if that individual continues to learn how to live with his handicap, it is my opinion that that man can live out his days, as well as if he did not have the diabetes."

Defendant urges that there was no evidence that the insured kept his diabetes under control. This ground of objection, however, was not embodied in the objection as made, nor called to the attention of the lower court or opposing counsel. It cannot, therefore, be considered on appeal. United States v. Nickle (C.C.A.8) 70 F. (2d) 873; Cockrell v. United States (C.C. A. 8) 74 F.(2d) 151; Niagara Fire Ins. Co. v. Raleigh Hardware Co. (C.C.A. 4) 62 F.(2d) 705; Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735.

It is, of course, error to embrace in a hypothetical question a fact not shown by the evidence, and an error in permitting a hypothetical question to be answered may be so serious as to require reversal to prevent a miscarriage of justice, even though the error has not been properly preserved and presented. United States v. Harris (C.C.A. 9) 79 F.(2d) 341; United States v. Noble (C.C.A. 9) 79 F.(2d) 342; United States v. White (C.C.A. 9) 77 F. (2d) 757. In the instant case, however, we think there was evidence which tended reasonably to establish this assumed fact. Dr. Bliss testified: "My first examination of Armstrong in 1924 was a general checkup, a thorough examination * * * on my examination of him in 1926 he had no sugar in his urine, at intervening times he had been in and checked with me about his diet; he had sugar and sometimes not; I have no record of sugar being present on my examination of him in 1927; at the examination of November 26th, 1930 the test shows no sugar, the examination of March 25, 1931, showed no sugar, the test of January 11, 1933 showed a trace of sugar only."

This proof may not be entirely satisfactory, but that is not the test. It is sufficient if the assumed fact is developed directly, fairly, and reasonably by the evidence. Virginia Beach Bus Line v. Campbell (C.C.A.4) 73 F.(2d) 97; Woodward v. Chicago, M. & St. P. Ry. Co. (C. C.A. 8) 122 F. 66; Denver & R. G. R. Co. v. Roller (C.C.A. 9) 100 F. 738, 49 L.R.A. 77. The evidence, we think, fairly justified the assumption that the diabetes was being kept in check.

The other ground of objection is that certain other essential facts were omitted from the hypothetical question. The objection, however, does not point out what facts it is claimed were omitted, and hence that ground of objection was also properly overruled. Wabash Ry. Co. v. Lewis (C.C.A. 8) 48 F.(2d) 519; United States v. Nickle (C.C.A. 8) 70 F.(2d) 873. It is for the witness and not the court to determine whether from the facts stated he is able to express a scientific opinion. The weight of the opinion was for the jury. A hypothetical question need not include all the facts in evidence, nor facts or theories advanced by opposing counsel. Its form and length must be left largely to the discretion of the trial court. New York Life Ins. Co. v. Doerksen (C. C.A. 10) 75 F.(2d) 96. There was no error in overruling this objection.

(3) Dr. Bliss was asked the following hypothetical question: "Q. Assuming that a man of 56 years and 8 months of age should stoop forward in a position such as he would take in stooping down to jack up a wheel of an automobile, what would be the effect upon the circulation of that man while stooping?" This was objected to for the reason "that according to this witness' own testimony there are several different ways in which that might be done, no foundation laid, and incompetent, irrelevant and immaterial." This objection was overruled, and the witness answered: "A. The act of stooping would produce a congestion of the brain."

Defendant urges that it is a matter of common knowledge that the insured might have crouched, instead of stooping to elevate the car with the jack. This, however, is not suggested by the objection interposed. If this specific objection had been interposed, it might have been answered below. But it is also contended that there is no evidence that the insured stooped. A photograph of the car with the jack in place as Armstrong must have used it was introduced in evidence. We think it was a fair presumption based upon the physical facts and circumstantial evidence that he would stoop in using the jack. The jury were the judges of whether the facts were correctly hypothesized. There was evidence that insured jacked up the car. He was seen to drive into the garage about 20 or 25 minutes before 5 p. m. At 5 he was found dead or dying. The chain had been removed from the right rear wheel, while the chain on the left rear wheel was unfastened, and the left rear wheel was jacked up. The car had chains on when driven into the garage. The contention that the evidence does not show tht Armstrong jacked the car up is without force, and there was no error in overruling defendant's objection to this hypothetical question.

(4) Dr. Bliss was also asked: "Q. Doctor, assuming that such a man had been so stooping over the exhaust pipe of an automobile in which the automobile motor was running and generating carbon monoxide gas, would he be apt to inhale some of that carbon monoxide gas?"

This was objected to on the...