National Life & Acc. Ins. Co. v. Follett

• Decision Date: 19 March 1935
• Citation: 80 S.W.2d 92,168 Tenn. 647
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. FOLLETT.
• Court: Tennessee Supreme Court

80 S.W.2d 92

168 Tenn. 647

NATIONAL LIFE & ACCIDENT INS. CO. v. FOLLETT.

Supreme Court of Tennessee.

March 19, 1935

Appeal from Chancery Court, Shelby County; L. D. Bejach, Chancellor.

Suit by Jane C. Follett against the National Life & Accident Insurance Company. From a decree of the Court of Appeals which reversed a judgment for complainant and remanded case for new trial, complainant and defendant appeal by certiorari.

Decree of Court of Appeals reversed, and decree of chancellor affirmed.

GREEN Chief Justice.

This is a suit on an accident insurance policy in which there was a judgment for complainant. The Court of Appeals reversed that judgment and remanded the case for a new trial on account of certain evidence which that court thought improperly permitted to go to the jury. Both parties have filed petitions for certiorari, which have been granted.

Walter L. Follett, at the time of his death, was a man sixty-one years of age. He carried an accident policy with defendant insurance company, of which his wife, the complainant, was beneficiary, in the sum of $3,000.

The policy insured him "against loss of life *** which results solely and without other contributing causes from accidental injury," and the policy provided "Accidental injury as used in this policy means bodily injury suffered while this policy is in force, and which is effected solely and independently of all other causes through accidental means."

The deceased was superintendent of a concern known as the Wolf River Sand & Gravel Company in Memphis. According to the testimony of his wife, his neighbors, and his business associates, he was a man apparently robust, in good health and a man who led rather an active life. So far as known, at the time of his death, he was not afflicted with any ailment.

Mrs Follett testified that on the morning of December 21, 1932, while she was in her kitchen getting breakfast about 7 a. m., her husband passed through the kitchen going out to the garage in the rear. It was a cold morning, with snow and sleet on the ground. Follett told his wife that he was going out to warm up his car.

Mrs. Follett further testified that in about ten minutes her husband returned, faltering in his step, his hands over the pit of his stomach, his face deathly pallid, and drops of perspiration as large as her little finger coming down the side of his face. That he was stooped over and said he had fallen against the car and struck himself in the pit of the stomach, and that he was knocked out. The witness said that Follett was nauseated, had a violent spell of vomiting which lasted about a half an hour; that he then went to bed and went to sleep; that she was in his room from time to time during the day; and that when she went in the room between 3:30 and 4 o'clock in the afternoon she found her husband dead. She called a neighboring physician, who arrived very shortly, and the latter said that Follett had been dead about a half an hour.

About noon during the day, Mrs. Follett and a neighbor named Deal went out to the garage and found that the car, a small coupé, had been backed about half way out, had been jacked up, and the left front tire, which was flat, had been removed. The spare tire had been taken off the carrier and placed by the wall of the garage near the front wheel. The flat tire had been put on the carrier, but had not been locked on. The lock was lying on the back part of the car, and the key was in the lock.

Deal and Mrs. Follett testified that they saw a cut place in the sleet or snow which looked like a footprint where some one had slipped. That this was just behind the car, and between two concrete runways leading to the garage. They said the garage was fifteen or twenty feet from the back porch of the house. The back porch was small, was two steps up, and led into the kitchen. Follett came back into the house over this porch and through the kitchen.

An autopsy was performed upon the body of Follett, under the advice of Dr. Kincaid, the family physician, on the day after his death. This autopsy was performed by Dr. McIntosh, who seems to be one of the leading pathologists in Memphis. Dr. McIntosh made a written report of the autopsy, which the doctors call a protocol. This protocol set out the condition of practically all the organs of the body as disclosed to Dr. McIntosh in his examination. The protocol is couched in medical and scientific terms, and is almost unintelligible to a lay reader.

Generally speaking, it may be said that the protocol indicated a diseased condition of the heart and other internal organs of the deceased. The determining question of fact in the case was of course whether Follett's death resulted from his alleged accidental fall "without other contributing causes" and "solely and independently of all other causes." In other words, whether the diseased condition of his organs, which the autopsy indicated, contributed to his death.

The jury found this issue in favor of the complainant, and this finding has been approved by both of the courts below. Nevertheless, the first contention of the defendant insurance company is that there is no evidence to sustain such finding.

Five doctors testified in the case. Two of them, Dr. Kincaid and Dr. Stern, expressed the opinion that Follett's death was caused solely by shock from his fall, and that the impaired condition of his internal organs did not contribute to his death. Dr. Kincaid examined deceased after his death, and assisted Dr. McIntosh in performing the autopsy. Dr. Stern based his opinion on the history of the case and on the protocol.

Three doctors, Dr. McIntosh, Dr. Mann, and Dr. Le Roy, expressed the opinion that the diseased condition of Follett's internal organs, as indicated by the protocol, certainly contributed to his death, if indeed such condition did not occasion his death, irrespective of the fall.

Dr. McIntosh, as above stated, performed the autopsy. Dr. Mann and Dr. Le Roy based their opinions on the history of the case and upon the protocol.

If all the evidence above detailed is competent, a matter which will be later discussed, it must be conceded that there is substantial evidence to support the finding of the jury and the result reached in the courts below. Follett's vigor and activity prior to this accident, his death so soon thereafter, and the testimony of Dr. Kincaid and of Dr. Stern, all this was quite sufficient to take the case to the jury.

The Court of Appeals reversed the judgment of the court below because of the manner in which the chancellor permitted Dr. Kincaid and Dr. Stern to be examined by complainant.

Hypothetical questions were put to these doctors embodying certain facts given in evidence and asking the doctors, upon such facts and upon their examination of the protocol, whether it "was likely" that the death of Follett resulted from a severe blow in the pit of the stomach solely and without other contributing causes. Both these doctors answered that it "was likely" that Follett's death was so brought about.

The Court of Appeals ruled that these questions asked the witnesses to express their opinions upon the very issue submitted to the jury, and, such being the situation, the court further ruled that the questions were improperly framed under authority of Cumberland Telephone & Telegraph Co. v. Peacher Mill Co., 129 Tenn. 374, 164 S.W. 1145, 1147, L. R. A. 1915A, 1045.

In so far as the questions propounded to the doctors called for an expression of opinion upon the very issue to be determined by the jury, we think that the questions were clearly unobjectionable. This is true because the issue to be determined by the jury, the cause of death, could not be intelligently determined, either by jury or judge, without the aid of medical advice.

There are broad statements in some of our cases, notably Bruce v. Beall, 99 Tenn. 303, 41 S.W. 445, that an expert may not express his opinion as to the ultimate fact to be determined by the jury. The same learned judge, however, who prepared the opinion of the court in Bruce v. Beall, later, in Camp v. Ristine, 101 Tenn. 534, 47 S.W. 1098, limited the authority of Bruce v. Beall to a holding that an expert might not give an opinion as to what is negligence in a particular case, when the facts having been made to appear to the jury, the jury was entirely qualified to determine for itself whether such facts constituted negligence.

We have many cases in which the ultimate fact to be determined by the jury has been regarded as a proper subject about which to bring out the opinion of an expert. In Mayor, etc., of Knoxville v. Klasing, 111 Tenn. 134, 76 S.W. 814, the question to be determined was the origin of disease, and doctors were permitted to testify directly as to their opinion upon that question. In Knights of Pythias v. Steele, 108 Tenn. 624, 69 S.W. 336, doctors were permitted to express their opinion as to whether a death resulted from suicide or disease; the very issue to be determined by the jury. So in Burns v. Welch, 8 Yerg. (16 Tenn.) 117, experts were permitted to express their opinion as to the capacity of a sawmill; likewise the question to be determined by the jury. Since Gibson v. Gibson, 9 Yerg. (17 Tenn.) 329, physicians have been permitted to testify as to the mental capacity of a testator; the very issue to be determined in many cases arising upon an issue of devisavit vel non. Instances might be multiplied, but the foregoing are sufficient.

The true rule just here is stated in McCravy v. State, 133 Tenn. 358, 368, 181 S.W. 165, 168, and is that "Testimony is permissible allowing an expert to state a conclusion or give an opinion on a subject which is peculiarly a matter of superior knowledge on his part, for...