Metropolitan Life Ins. Co. v. Wright

• Citation: 199 So. 289,190 Miss. 53
• Decision Date: 23 December 1940
• Docket Number: 34285
• Court: Mississippi Supreme Court
• Parties: METROPOLITAN LIFE INS. CO. v. WRIGHT

199 So. 289

190 Miss. 53

METROPOLITAN LIFE INS. CO. v. WRIGHT

No. 34285

Supreme Court of Mississippi

December 23, 1940

APPEAL from the circuit court of Jones county, HON. T. PRICE DALE Special Judge.

Action on disability insurance policy by Reed Wright against Metropolitan Life Insurance Company. From a judgment for the plaintiff, the defendant appeals. Reversed and remanded.

Reversed and remanded.

Wells Wells & Lipscomb, of Jackson, and Welch & Cooper, of Laurel for appellant.

The court erred in overruling the defendant's objection to the following question propounded to Dr. J. C. Butler by the plaintiff: "Now, doctor, in your opinion as a physician would you say that he is or is not totally and permanently disabled?" And erred in permitting the witness to answer said question.

U. S. v. Spaulding, 55 S.Ct. 141, 79 L.Ed. 617.

The court erred in granting the following instruction for the plaintiff: "The court instructs the jury for the plaintiff that if you believe that any witness has knowingly and maliciously sworn falsely to any material facts, then you may entirely disregard the entire evidence of such witness."

An instruction of this character must always contain the full equivalent of the limitations that such false swearing was "wilfully, knowingly, and corruptly done." We respectfully submit that the word, "corruptly, " or its equivalent, was entirely left out of the instruction. This is fatal error.

W. T. Farley, Inc., v. Smith, 130 So. 478; White v. State, 52 Miss. 216; Vicksburg & M. R. Co. v. Hendrick, 62 Miss. 28; Sardis & D. R. Co. v. McCoy, 85 Miss. 391, 37 So. 706; Davis v. State, 89 Miss. 119, 42 So. 541; Wofford v. State, 99 Miss. 759, 56 So. 162; D'Antoni v. Albritton, 126 So. 836; Pickwick Greyhound Lines, Inc., v. Johnson, 134 So. 566.

The court erred in refusing to allow the defendant to show in the presence of the jury the moving pictures of the plaintiff at work, and in sustaining the plaintiff's motion to exclude the evidence of the witnesses Talley and Richard, and instructing the jury to disregard such evidence.

Gulf Research Development Co. v. Linder, 170 So. 646, 177 Miss. 123; Beard v. Turritan, 161 So. 688, 173 Miss. 206; Favre v. L. & N. R. R. Co., 178 So. 327, 180 Miss. 843; Calif. Life Ins. Co. v. Stossel (Fla.), 179 So. 163; State v. United Railways, 159 A. 916, 162 Md. 404, 83 A. L. R. 1307; Phillipi v. N.Y.C. & St. L. R. Co. (Mo.), 136 S.W.2d 339; Owens v. Hagenbeck-Wallace Shows Co. (R. I.), 192 A. 158; Boyarsky v. Zimmerman Corp., 270 N.Y.S. 134, 240 A.D. 361; Rogers v. City of Detroit, 286. N.W. 167, 289 Mich. 86; Pacific Mutual Life Ins. Co. v. Marks (Ala.), 161 So. 543; Commonwealth v. Roller, 100 Pa. Super. Ct. 125; People v. Hayes, 71 P.2d 321; 21 Calif. App. (2d) 320; Wigmore on Evidence (3 Ed.), p. 283, sec. 798 (a); Moving Pictures in Evidence, 27 Ill. Law Rev. 424; State v. Knight, 43 Me. 132.

The only reason that the trial court gave for not allowing the pictures to be shown was that in his opinion they would be prejudicial to the plaintiff. We respectfully submit that any evidence that would tend to show that the plaintiff was not totally and permanently disabled would be prejudicial to the plaintiff in the same manner that this evidence was prejudicial.

The cases hereinabove cited constitute all of the reported cases that we are able to find on the point under discussion. From an analysis of these cases, together with a careful study of the articles and texts above cited, we think that certain general rules may be deduced as to when and under what conditions pictures may be used in evidence, as follows:

(1) It should be shown that the operator who took the pictures was a competent and experienced operator.

(2) It should be shown that the camera used was a standard camera, and how it worked.

(3) The number of pictures which passed per second before the lens to create "normal speed, " and thus accurately record as to the speed the movements of the objects photographed should be shown.

(4) Weather conditions under which the film was taken should be shown.

(5) The speed at which the camera was set and its distance from the object should be shown.

(6) It should be shown that the finished film, when projected on a screen, shows exactly what the operator saw with his naked eye when the picture was taken.

(7) It should be shown that the film was developed by an experienced and skilled processor, and that in the process of development it was not mutilated, cut, touched up, or changed in any manner.

(8) The party offering the pictures should show that a projector and screen are available, and an expert operator is available. It should also be shown that when set at the proper speed the projector will project on the screen exactly what the operator saw with the naked eye when the film was taken.

The moving picture is not subject to human fallibilities. If the film is properly and honestly taken, and properly and honestly projected, it shows exactly what was seen with the naked eye by the operator. It is not subject to lapses of memory, prejudice, or plain perjury. The film does not forget and, if taken and projected as above set forth, is not subject to suggestion by counsel or other witnesses.

The trial court committed palpable error in refusing to allow this motion picture to be shown to the jury, and for this error this case should certainly be reversed and remanded.

Albert E. Easterling, of Laurel, for appellee.

The court was not in error in allowing Dr. Butler to testify that, in his opinion, the plaintiff was totally and permanently disabled.

L. & N. R. Co. v. Steward (Ala.), 29 So. 562.

Opinion evidence of experts is competent evidence, and it appears certain that the opinion of the physician should be admitted where the facts upon which the opinion or the conclusion is based are too delicate, minute, or too numerous to be presented to the jury, and where the jury is not competent to decide without assistance from someone more skilled than they. Physician's or other expert evidence is always given to the jury for the purpose of enlightening them upon matters of which their knowledge is limited.

U. S. v. Spaulding, 55 S.Ct. 141, 79 L.Ed. 617, is a case were there was a dispute between expert evidence. In the case at bar, there is no contradictory evidence as to the disabilities of the plaintiff.

The falsus in uno, falsus in omnibus instruction must always contain the full equivalent of the limitation that such false swearing was willfully, knowingly, and corruptly done.

W. T. Farley, Inc., v. Smith, 130 So. 478.

From the actual language of this case the instruction must necessarily contain the "equivalent of the limitation." I submit that the instruction complained of not only contains the "equivalent of the limitation" but imputes even more. The word maliciously not only would impute the words corruptly and willfully, but would impute hatred, and it appears unquestionably that if the jury would believe a witness maliciously swore falsely, they would believe he had sworn corruptly and willfully falsely and with hatred.

There is no error in the exclusion of the moving pictures from the jury for the following reasons:

(1) They were immaterial to the issues in dispute; (2) Their admissibility should be determined by the trial judge; (3) They were irrelevant and too remote from issues in dispute.

The record discloses that the moving picture only portrays what occurred during four or five minutes out of a space of three years. If offered for evidence for the purpose only of showing that he worked four or five minutes during the three years, it certainly had no purpose to serve, as there was no dispute that the plaintiff worked on the WPA, and certainly it is obviously the law that admissions have the effect of excluding evidence as to the facts admitted and confining the litigants to the point in dispute. As stated, there was no dispute as to whether or not the plaintiff worked. Evidence to be admissible should bear in a fairly direct way upon the issues and beyond any doubt should be carefully scrutinized where it is likely to excite emotion or prejudice.

In the case at bar, there is no dispute as to whether or not the plaintiff worked, the dispute being, was he totally and permanently disabled. Direct testimony was available both to plaintiff and defendant to properly present material facts to the jury.

10 R. C. L. 927, sec. 91; O'Meara v. Haiden, 60 A. L. R. 1381; Birmingham Baptist Hospital, Inc., v. Blackwell (Ala.), 128 So. 389; 22 C. J. 169, sec. 95.

Counsel for defendant in his argument places moving pictures and their admission as evidence in the same category with photographs and X-rays, and indeed they should be, except that they deserve more careful scrutiny. However, a careful review shows that not all photographs are admissible in evidence, in fact they are more often refused than admitted. Further, all of the authorities are agreed, as far as we are able to ascertain, that the admission of pictures, X-rays, or diagrams should be at the discretion of the trial judge. In fact, all authorities stress that point. This appears obviously to be the law for the reason that the trial judge, observing the jury, hearing the evidence, etc., is more able to ascertain and determine evidence which is material, relevant, and that which will not prejudice the jury in favor of one party or another, it being his duty to admit that evidence which in his opinion may properly promote justice.

Le Barron v. State, 65 So. 648; 3 Jones, Commentary on Evidence, sec. 381, 22 C. J. 921, sec. 1125; State, Use of Chima, v. United R. & Electric Co., 83 A. L. R. 1307; Sorrell v. Scheuer (Ala.), 96 So. 216; Gulf Research Development...