Mutual Life Ins. Co. of New York v. Rather, 39255

• Decision Date: 14 June 1954
• Docket Number: No. 39255,39255
• Citation: 221 Miss. 527,73 So.2d 163
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. RATHER et al.
• Court: Mississippi Supreme Court

Page 163

73 So.2d 163

221 Miss. 527

MUTUAL LIFE INS. CO. OF NEW YORK v. RATHER et al.

No. 39255.

Supreme Court of Mississippi.

June 14, 1954.

Lipscomb, Ray & Barksdale, Jackson, for appellant.

Smith & Hurdle, Holly Springs, for appellees.

LEE, Justice.

John E. and Hugh H. Rather, Jr., as beneficiaries, sued the Mutual Life Insurance Company of New York to recover a double indemnity benefit of $3,000 on the life of their father, Hugh H. Rather, deceased. There was a verdict for the plaintiffs, and the insurance company appealed.

The sole question presented by the pleadings and proof was whether or not the death 'resulted directly from bodily injury * * * independently and exclusively of all other causes, and that such bodily injury was effected solely through external, violent and accidental means, * * *' and not 'directly or indirectly from bodily or mental infirmity or disease of any sort * * *', in accordance with the provisions of the policy.

Mr. Rather, 68 years of age, lived in a two-story home in the town of Holly Springs. A back door opened outward onto brick steps, which consisted of three steps. The first two were average, but the bottom step was only 3 or 4 inches in depth. About 3 o'clock in the afternoon of March 16, 1953, Mr. Rather fell on or near the back steps. Mrs. H. F. Gholson and the insured's wife were in the yard at the time. On hearing a call, they ran to the back and found him lying on his right side and face. He was complaining of his hip. His feet were toward, and his head away from, the steps. Dr. Herbert Phillips was called. He found that the right hip was broken, but the patient's heart and lungs were clear and in good condition. At the local hospital, X-Rays confirmed the doctor's diagnosis. The injured man was taken to the Methodist Hospital in Memphis, Tennessee, that evening. John E. Rather witnessed the examination at the hospital where weights were placed on the leg, and returned to the hospital the next afternoon about 5 o'clock. At that time the weights were still on the leg. About 2 or 2 1/2 hours later, an orderly was engaged in preparing the patient for an operation the next morning. Mr. Rather complained that it was hurting him to lie on his side; whereupon the orderly allowed him to turn on his back. John E. noticed that his father's face suddenly turned white, his hands were on his chest, he gasped several times, and died before medical aid could be summoned.

The insured had suffered from Parkinson's Disease for about 10 years. The disease affects the nervous system. The sufferer does not lose his muscular strength, but the loss is in the in-co-ordinating movement of the muscles while they are at rest. He had been treated by Dr. Phillips from the inception of the ailment. The doctor testified that the disease had been arrested for the past 4 years; that it was a moderately advanced case; that, on visits, his patient seemingly had good control of himself; that the trouble was largely with his hands and arms, and when he got control of those members, he could get around, though somewhat slower; and that he could go up and down stairsteps quite well. Several days before the injury, the doctor made a routine physical examination of the insured and found his heart in almost perfect condition, his blood pressure normal, and otherwise he was in good condition.

Dr. Phillips was asked a hypothetical question, based on his long treatment of the insured, his examinations immediately prior to and following the injury, about which he had fully testified, and the symptoms immediately prior to death, as described by John E. Rather. The doctor gave it as his opinion that death resulted from an embolus, or bloodclot, which formed at the situs of the injury, or torn blood vessel, and traveled to and lodged either in the heart or lungs. He was unequivocal in his opinion that Parkinson's Disease in no way caused or contributed to the death.

Lange Butler, a nephew, Mrs. H. F. Gholson, a nurse, and John E. Rather agreed that the insured needed help to dress or undress, to get in or out of bed, to shave, and to feed himself. Butler testified that, at times, he walked as well as anybody; he could go up and down steps freely; he had been down in the basement with his uncle several times, and there was no trouble in negotiating the 15 or 20 steps; his uncle could get around well, and he had never seen or heard of his falling. Mrs. Gholson saw him a number of times walking in the yard without assistance, and thought that he did well. She observed a tremor in his hands, and that he had a shuffling gait. However, he was able to lift her baby, who weighed 35 pounds, without difficulty. John E. testified that his father's bedroom was on the second floor; that he went up and down the stairs two or three times a day, and did not use the handrail; that he went out into the yard very often; and that he had never fallen but one time, on an occasion when he went to the attic for some eggs, but he was unhurt, and did not break an egg.

The insurance company had paid total disability benefits for the ten year period. The statements of Dr. Phillips, accompanying the insured's applications, were introduced in evidence. Such unsworn statements indicated a greater disability than was reflected in the doctor's sworn testimony. Likewise an unsworn statement of John E. Rather, given to the insurance company after the death of his father, indicated that his father was in worse condition than he testified to at the trial.

However, it was for the jury to say which of the statements of the doctor and John E. were the truth about the matter--whether those which were made ex parte, or those which were sworn to from the witness stand. Weyen v. Weyen, 165 Miss. 257, 139 So. 608, 856. See also Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; C. & R. Stores, Inc., v. Scarborough, 189 Miss. 872, 196 So. 650; F. W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447; Jefferson v. Y. & M. V. Railroad Co., 194 Miss. 729, 11 So.2d 442; Thompson v. Thomas, Miss., 69 So.2d 238.

Appellant contends that its objections to the hypothetical question, namely, that it embraced some facts that had not been shown in evidence, and that Dr. Phillips had not seen the insured, after he was taken to the hospital in Memphis, should have been sustained.

It is true that the doctor did not see the insured after his removal to Memphis. But it would not take a doctor to show the fact that the leg was placed in traction, that is, that weights were attached. Of course, the son could not testify to the medical effect of the symptoms which he observed; but there is no reason why he should not be permitted to tell what he saw, just as anyone else. No doctor was...