Nationwide Mut. Ins. Co. v. Griffin, s. 1017

Decision Date23 May 1969
Docket Number1597,Nos. 1017,s. 1017
Citation222 So.2d 754
PartiesNATIONWIDE MUTUAL INSURANCE COMPANY, an Ohio corporation, Appellant, v. Helyne GRIFFIN, as Administratrix of the Estate of Sabina M. Foster, Deceased, and John J. Foster, Appellees.
CourtFlorida District Court of Appeals

P. Dalton Kennedy, Jr., West Hollywood, for appellant.

Norman C. Roettger, Jr., of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellees.

OWEN, Judge.

Nationwide's automobile liability policy provided for payment of certain medical expenses and disability and death benefits to any person suffering injury or death by reason of an accident arising out of the use of the automobile. Sixty-eight year old Sabina Foster was a passenger in the automobile at the time it was involved in an accident on February 17, 1963. She was immediately admitted to the hospital and 24 days later, while still a patient, she sustained a cerebral thrombosis which required her continued hospitalization until March 18, 1963. Thereafter she appeared to be recovering from the effects of the stroke although the extent of her activities was in dispute. On February 2, 1964, approximately 350 days after the accident, Mrs. Foster died, the immediate cause of which was cerebral thrombosis having its onset approximately 48 hours prior thereto.

When Nationwide denied liability for the $5,000 death benefit this suit resulted. At trial plaintiff's expert medical witness, Dr. Monyek, expressed the opinion, in response to a hypothetical question, that there was a causal relationship between the automobile accident and Mrs. Foster's death. Defendant's objection to the hypothetical, on the grounds that it was based upon facts which were not in evidence, was overruled. On cross examination the witness admitted that his opinion was based partly on the assumption that the cerebral thrombosis occurring immediately prior to death was in the same general area of the brain as the cerebral thrombosis occurring approximately three weeks following the accident, although there was no direct proof of such. Defendant's counsel then asked the witness whether, in the absence of such an assumption, he could express his opinion with 'reasonable medical certainty' to which the witness responded in the negative. Defendant's motion to strike the direct testimony of the expert witness was denied. The court also denied the defendant's request for an instruction to the jury that death is presumed to be the result of natural dissolution rather than of accidental injury. The jury returned a verdict for plaintiff for an amount which included the medical expenses, the disability benefits and the $5,000 death benefit. The court then entered judgment for the amount of the verdict, 'together with interest costs and attorney's fees as may be hereafter taxed by the court'. Appeal No. 1017 was taken from this judgment. Approximately one year later the court entered its order taxing costs, attorney's fees and interest and appeal No. 1597 is from this order. The appeals were consolidated.

The court properly overruled defendant's objection to the hypothetical question propounded to plaintiff's medical expert. There is competent, substantial evidence in the record tending to prove each of the basic facts set forth in the hypothetical questions. 1 Such basic facts do not need to be proven conclusively before a hypothetical question can be based thereon.

It was not error to deny defendant's motion to strike the opinion testimony of Dr. Monyek. He did not state that absent the assumption that both strokes occurred in the same area of the brain, he could not causally connect the death to the accident. Had he made this admission, the defendant's motion would have been well-founded. Rather, Dr. Monyek stated that absent such assumption, he could not state his opinion with 'reasonable medical certainty'. Expert medical opinion as to causal relationship between an accident or occurrence on the one hand and a present or past condition on the other hand does not need to be stated with reasonable certainty. Such testimony is competent if the expert can show that the accident or occurrence could cause such injury or result, 2 or that the accident or occurrence might have or probably did cause the injury or result. 3 The defendant did not elect to inquire of the witness whether, in the absence of such assumed fact, he could express an opinion on the causal connection which would meet one of the foregoing tests, but chose to limit the question to whether the opinion could be expressed with reasonable medical certainty. The admitted inability of the witness to express the opinion with reasonable certainty did not render his...

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27 cases
  • Smith v. State
    • United States
    • Florida Supreme Court
    • March 19, 2009
    ...there is evidence in the record to support the fact. See Autrey v. Carroll, 240 So.2d 474, 476 (Fla.1970); Nationwide Mutual Ins. Co. v. Griffin, 222 So.2d 754 (Fla. 4th DCA 1969). In the instant case, defense counsel's objections to the State's first hypothetical question were as to the fo......
  • Cook v. Deltona Corp.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 27, 1985
    ...rate from the due date thereof." Parker v. Brinson Construction Co., 78 So.2d 873, 874 (Fla.1955); Nationwide Mutual Insurance Co. v. Griffin, 222 So.2d 754, 756 (Fla.Dist.Ct.App.1969). On these authorities we conclude that Deltona, by breaching its contractual duty to refund Cook's purchas......
  • Benson v. State, 86-2431
    • United States
    • Florida District Court of Appeals
    • May 20, 1988
    ...admissible testimony need not be to a certainty. See Amazon v. State, 487 So.2d 8, 12 (Fla.1986); Nationwide Mutual Insurance Co. v. Griffin, 222 So.2d 754 (Fla. 4th DCA 1969); 24 Fla.Jur.2d, Evidence and Witnesses § 683 (1981). To the extent the expert testimony in this case involved basin......
  • Universal Ins. Co. of North America v. Warfel
    • United States
    • Florida Supreme Court
    • January 26, 2012
    ...codified. See Ins. Co. of State of Pa. v. Estate of Guzman, 421 So.2d 597, 601 (Fla. 4th DCA 1982). In Nationwide Mutual Insurance Co. v. Griffin, 222 So.2d 754, 756 (Fla. 4th DCA 1969), the Fourth District Court of Appeal articulated the historical effect of presumptions prior to the enact......
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1 books & journal articles
  • Witness questioning and answering
    • United States
    • James Publishing Practical Law Books Florida Family Law Trial Notebook
    • April 30, 2022
    ...is evidence in the record to support the fact. See Autrey v. Carroll , 240 So.2d 474 (Fla. 1970); Nationwide Mutual Ins. Co. v. Griffin , 222 So.2d 754 (Fla. 4th DCA 1969); Smith v. State , 7 So.3d 473 (Fla. 2009). 7.5 BEYOND SCOPE The cross-examination of a witness is limited to the subjec......

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