Metropolitan Life Ins. Co. v. Saul
| Decision Date | 13 September 1939 |
| Docket Number | 12777 12778. |
| Parties | METROPOLITAN LIFE INS. CO. v. SAUL. SAUL v. METROPOLITAN LIFE INS. CO. |
| Court | Georgia Supreme Court |
Rehearing Denied Oct. 13, 1939.
Syllabus by the Court. [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Smith, Smith & Bloodworth, of Atlanta, for plaintiff in error.
A. S. Grove, of Atlanta, for defendant in error.
This case has been tried before a jury since it first appeared in this court. Metropolitan Life Insurance Co. v. Saul, 182 Ga. 284, 185 S.E. 266. The verdict was for the plaintiff for the amount of the premiums claimed to have been paid by him on a policy of insurance on his life, from a period in 1934 up to the time the case was tried. The claim is that under the terms of the policy as stated in the former decision the plaintiff should have been relieved from the payment of these premiums, by reason of his having become permanently and totally disabled before the time mentioned and before he reached the age of sixty years; that the company refused, after proper proof had been submitted, to relieve him of these payments, and that accordingly, on account of the hazard of having the policy lapsed for failure to pay the premiums, he was under such urgent and immediate necessity of making such payments as would take them out of the classification of voluntary payments, and entitled him to a recovery of them as having been wrongfully required. The plaintiff in error in the main bill of exceptions assigns error on the overruling of its motion for new trial, which contains eighty-four grounds, and on the overruling of various grounds of demurrer, to which ruling exceptions pendente lite were taken before bringing the case to this court the first time. By cross-bill of exceptions the defendant in error assigns error on the overruling of a demurrer to an amendment by the plaintiff in error of its answer.
1. We shall first determine whether the assignments of error complaining of the overruling of the various grounds of demurrer may now be considered. It is earnestly insisted by counsel for plaintiff in error that the former decisions of this court dealt only with the general demurrer, and that we should now inquire into the allege errors in overruling various grounds of special demurrer. When the petition was originally filed, the defendant filed an extensive demurrer containing seven numbered paragraphs and various subparagraphs, challenging the petition on substantially all of its parts. Thereafter the plaintiff amended in response to the demurrer, and again the defendant filed an additional demurrer which appears in the present record and consists of twenty-seven pages, sixty-three grounds, and many subdivisions, some of them running in enumeration from a to j. The plaintiff again amended, and defendant further demurred. This time forty-four grounds of demurrer were urged, and the defendant reiterated and amended various previous grounds of demurrer. Finally the trial court entered on the demurrer a judgment whereby it was "ordered that each of the general and special demurrers is overruled, except" that the right of the plaintiff to recover premiums paid was restricted to premiums paid after notice and proof, and a certain paragraph of the petition was stricken. The exceptions pendente lite to this order assigned error because the court "erred in not sustaining each and all of the demurrers of defendant." This court then reviewed this judgment, and affirmed those rulings except such as would have permitted a recovery for attorney's fees. After reciting in the opinion [182 Ga. 284, 185 S.E. 267] that "the demurrers with certain exceptions were overruled, and the insurance company excepted," it was stated [182 Ga. 287, 185 S.E. page 268]: "nor was the petition as amended subject to any of the grounds of the demurrer, except those relating to the claim for attorney's fees and damages." Thus it seems clear to us that the law of the case as stated by the amended petition became fixed, and the parties were concluded as to all grounds of the demurrer theretofore urged. See Elyea v. Cenker, 184 Ga. 179, 190 S.E. 585; Western & A. R. Co. v. Third Nat. Bank, 125 Ga. 489, 54 S.E. 621; Wilson v. Missouri State Life Insurance Co., 184 Ga. 184, 190 S.E. 552.
2. Grounds 7 to 46 of the motion for new trial deal with opinion testimony by the doctors who, at various times, had treated or examined the plaintiff for the ailments which he contends caused his disability. Grounds 48, 49, 50, 51, and 58 relate to testimony of the plaintiff's son as to his father's disability. This testimony was admitted over objections that the same was irrelevant and incompetent, that the son was not qualified to give such evidence, and that it invaded the province of the jury. Grounds 59, 60, 61, and 62 likewise bring into question the correctness of the court's ruling in admitting, over similar objections, the testimony of plaintiff's physician, Dr. H. C. Sauls, who had treated the plaintiff from the beginning of his claimed disability. Ground 66 likewise deals with the admission in evidence from a non-expert witness (a bookkeeper in the business formerly conducted by the plaintiff), who was allowed to give an opinion as to whether or not from his observation the plaintiff was able to engage in and perform his customary duties and work about his business. Due to the voluminous nature of the motion, and since all of these questions provoke a ruling upon the same general principle dealing with the extent to which opinion evidence both expert and non-expert will be admitted, they will be treated together.
As will later be seen from the authorities cited, the general rule is that in the trial of issues witnesses must testify as to facts only, and not as to their opinion deduced from facts, the latter being left as a proper function for the jury. As will also be seen, there are exceptions to that rule. In our State exceptions are intended to be provided for by the terms of two Code sections. Section 38-1708 states the exception as well as the rule, as follows: "Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor; but if the issue shall be as to the existence of a fact, the opinions of witnesses, generally, shall be inadmissible." Section 38-1710 declares: "The opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." The objections in the case now before us, however variously stated, are limited entirely to the claim of error that the opinions of witnesses admitted into evidence "invaded the province of the jury." On this question it is to be borne in mind that the primary issue before the jury was whether or not the plaintiff at a given time, and during a given period, was totally and permanently disabled within the meaning of the pertinent provisions of the contract of insurance. Several of the medical experts, who had examined or treated the plaintiff at various times during the period involved, were permitted to testify, over the objections here mentioned, to the general effect and in terms that the plaintiff was, in their opinion based on their findings and examination (or treatment) of him, totally and permanently disabled. In some instances the language would be one thing, and in other instances another, but at last it was on that very question. Thus it is seen that testimony was being given in the nature of an opinion in favor of one party as against the other on the ultimate fact or question to be found by the jury. Taking the broad, general principle stated above as a premise, and keeping in mind the objections as outlined, let us see from the record in this case whether or not the jury could have made an intelligent finding and could have performed their well-defined function "to ascertain the truth" from the facts alone to which these witnesses testified, independently of and without the benefit of these opinions based upon such facts.
Again let us repeat that the object of the inquiry was to determine whether the plaintiff was totally and permanently disabled from certain ailments and disease. One of the witnesses summed up his facts as follows: "My diagnosis at that time was cardio-vascular disease, hypertension and nephritis". He "revealed a blood pressure of 190/100, complained of weakness, dizziness, urine revealed a trace of albumen, numerous casts, arteries showed some hardening out of proportion to his age." Another stated the underlying facts in these words: Still another accounted for his opinion by reason of the following constituent factors: "He had thrombosis, or blocking of the vein in the retina of the right eye, *** due to a hardening of the arteries, arteriosclerosis." Another gave as the basis of his opinion, the following: The non-expert witnesses, who had been familiar with the physical condition and capacity of the plaintiff before the time of the claimed disability, without undertaking to state the nature of his illness or to explain its...
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