Mut. Life Ins. Co. of New York v. Jay

• Decision Date: 01 December 1942
• Docket Number: No. 16939.,16939.
• Citation: 44 N.E.2d 1020,112 Ind.App. 383
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. JAY.
• Court: Indiana Appellate Court

112 Ind.App. 383

44 N.E.2d 1020

MUTUAL LIFE INS. CO. OF NEW YORK

v.JAY.

No. 16939.

Appellate Court of Indiana, in Banc.

December 1, 1942.

Appeal from Circuit Court, Cass County; John B. Smith, Judge.

Action by Lola B. Jay against the Mutual Life Insurance Company of New York to recover disability benefits under a life policy issued to plaintiff by defendant and to recover premiums paid upon defendant's refusal to waive them. From a judgment for plaintiff defendant appeals.

Affirmed.Louis W. Dawson, of New York City, and Barrett, Barrett & McNagny, of Fort Wayne, for appellant.

Hillis & Hillis, of Logansport, and McClure & Shenk, of Kokomo, for appellee.

FLANAGAN, Presiding Judge.

This is an action brought by appellee, Lola B. Jay, against appellant, the Mutual Life Insurance Company of New York, to recover disability benefits alleged to be due appellee under a certain policy of life insurance issued her by appellant, and to recover premiums which appellee alleged she paid upon appellant's wrongful refusal to waive them. The sole issue of fact is whether or not appellee was totally and permanently disabled within the terms of the policy from November, 1939, to and including September 1940.

Trial was had before a jury which returned a verdict in favor of appellee. Appellant filed a motion for a new trial which was overruled and judgment was rendered upon the verdict. Appellant's sole assignment of error on appeal is the overruling of its motion for a new trial and it thereby challenges the ruling of the trial court in the admission of certain evidence and the sufficiency of the evidence.

One Dr. W. R. Hickman, who had examined appellee on April 9, 1941, at the request of the court, was placed on the stand as a witness by appellee. He stated that he had examined appellee on April 9, 1941, and was then asked to state what examination of her right eye was made and appellant interposed an objection which was sustained. The witness was then asked the following questions and made the following answers:

“Q. Based upon the examination which you made on that date, do you have an opinion as to whether or not the vision of Mrs. Jay in the right eye was impaired between October 1939 and September 1940? A. I have an opinion.

“Q. What is that opinion? A. My opinion is that Mrs. Jay, according to his history and objective findings, probably had some impairment of vision in the right eye prior to the date of my examination.”

To each of the above questions appellant interposed an objection and to the last answer a motion to strike, each of which were overruled. The witness then testified without objection as to the history given him by appellee.

Appellant seeks reversal because the answer last above set forth was permitted to go to the jury although they did not have the facts found by the doctor's examination of appellee's right eye on April 9, 1941, which formed part of the basis for his opinion.

[1] It is true that ordinarily an expert must testify to the facts upon which his opinion is based when it is based in whole or in part upon his personal observation and examination. Burns, Ex'r, v. Barenfield, 1882, 84 Ind. 43;Mounsey, Adm'x, v. Bower, 1922, 78 Ind.App. 647, 136 N.E. 41. But here the only reason the jury has failed to receive such facts is because appellant succeeded in having sustained an objection to their hearing them.

[2][3] Appellant says that the opinion of the witness would be proper had...