Police & Firemen's Ins. Ass'n v. Mullins

• Decision Date: 29 October 1953
• Docket Number: 6 Div. 467
• Citation: 260 Ala. 173,69 So.2d 261
• Parties: POLICE & FIREMEN'S INS. ASS'N v. MULLINS.
• Court: Alabama Supreme Court

Page 261

69 So.2d 261

260 Ala. 173

POLICE & FIREMEN'S INS. ASS'N v. MULLINS.

6 Div. 467.

Supreme Court of Alabama.

Oct. 29, 1953.

Rehearing Denied Jan. 14, 1954.

Jackson, Rives, pettus & Peterson, Birmingham, for appellant.

Dan P. Barber and Leigh M. Clark, Birmingham, for appellee.

This charge was given for plaintiff:

1. The court charges the jury that if you believe the evidence your verdict should be for the plaintiff.

SIMPSON, Justice.

The action was on a fraternal benefit insurance policy for the accidental death of insured, Chester L. Mullins, a former police captain of the Birmingham Police Department, caused by monoxide poisoning. The policy provided for payment to the beneficiary, his wife, of $250 for death due from natural causes or $2,500 for accidental death as defined in the policy and the by-laws of the defendant company.

The defendant offered to pay the $250 as for death due to natural causes but refused to pay the increased amount for accidental death. Plaintiff declined this offer and brought this action under the accidental death provisions of the policy and on verdict a judgment was rendered for the amount, from which the defendant brings this appeal.

Appellant urgently insists it was entitled to the general affirmative charge with hypothesis on the theory that the evidence was without conflict that Captain Mullins died from natural causes and not by accident, as those terms are defined in the policy and by-laws of the defendant association. The insistence has been supported by cogent argument both orally before the court on submission and in written brief. This is the main question. On a studious consideration, we have concluded the position to be untenable.

The insured was taken suddenly sick after breathing a considerable amount of smoke escaping from his basement furnace and died about ten or eleven hours later. The question was whether he died as a result of carbon monoxide poisoning from the smoking furnace or whether his death was due to heart attack from natural causes. The policy and the by-laws precluded a recovery for death resulting from heart disease or heart involvement. The policy provided:

'I agree that the benefits of this Association so far as accidental injury is concerned shall not extend to any bodily injury, or death, happening directly or indirectly in consequence of disease, or to an injury, of which this Association is not notified within fifteen (15) days of its occurence, or to any death or disability, which may be caused wholely or in part by mental or bodily infirmities or disease, except the payment of sick benefits as provided in the By-Laws. * * *'

Following is the pertinent excerpt from the By-Laws of the Association:

'Provided, always that death from heart diseases and from heart involvements of any character, septicemia, erysipelas or ptomaine poisoning shall not be adjudged to have been the result of an accident or accidental means, but shall be adjudged to have been the result of natural causes and only benefits paid for death from natural causes shall be paid.'

The defendant contends the evidence was without conflict that insured, at the time of his death, had a heart involvement which proximately caused his death and that if there was monoxide poisoning it was only one contributing cause which, operating with the previous heart involvement, conduced to that result, thereby entitling it to the affirmative charge. Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837.

This argument is rested on the testimony of defendant's witnesses, Doctors Kwong and Casey, pathologists, who testified that a post-mortem examination performed by them on the deceased's body and visceral organs showed he died as a result of coronary occlusion with antecedent atherosclerosis of long standing and that there was no indication of CO poisoning. C. D. Brooks, Associate State Toxicologist, also gave testimony as to his examination of parts of the visceral organs, which tended to corroborate the testimony of the two pathologists.

On the basis of this evidence, defendant strongly relies upon our decisions holding the affirmative charge with hypothesis should be given upon the clear, unimpeached and uncontradicted evidence of expert witnesses, such as practitioners of the medical profession, rested on facts ascertainable by the aid of instruments, learning and experience--facts outside the knowledge of laymen. Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 155 So. 755; New York Life Ins. Co. v. Zivitz, 243 Ala. 379, 10 So.2d 276, 143 A.L.R. 321.

But the weight of such testimony is subject to all the rules appertaining to the testimony of other witnesses within the realm of their knowledge. And the jury is not bound by the testimony of such experts unless uncontradicted and pertaining to subjects for experts alone. Commonwealth Life Ins. Co. v. Harmon, supra; Pollard v. Treadwell, 234 Ala. 615, 176 So. 452.

As is epitomized in the fifth headnote of National Life & Accident Ins. Co. v. McGhee, 238 Ala. 471, 472, 191 So. 884, 885:

'In an action on an accident policy wherein evidence is conflicting as to whether accident was sole proximate cause of the insured's death, liability of the insurer is for the jury, notwithstanding opinion of experts, given in evidence, that does not exclude reasonable field of common knowledge and experience as to the result.'

This case is ruled by the last stated prin ciple, since there was evidence pointing to the conclusion that the sole proximate cause of the insured's death was monoxide poisoning, although, as stated, the pathologists' testimony tended to support the contrary conclusion. Following is a brief summary of the plaintiff's evidence: Captain Mullins, the insured, died at the age of fifty-four years on March 21, 1951, at about 5:30 A.M. at his home in Birmingham, Alabama, where he had resided for about fifteen years. Prior to that time he had been a healthy, able-bodied man; had seen his personal physician a few days before on a nonprofessional visit and appeared in sound health; had never had any history of heart trouble and had always been active and vigorous. The day before his death he had done a full day's work; had come home and eaten supper about 6:30 or 7:00 P.M. After supper he took the table scraps to his basement to feed his dog and to fix the furnace fire, which was fired by coal and coke. The house was smoky and the children had complained of smoke and odor in the house early in the evening. Upon his return from the basement he complained his lungs were filled with basement smoke and that he was short of breath. Meanwhile, Mrs. Mullins had gone to bed feeling more than odinarily drowsy and Captain Mullins came into the bedroom complaining of feeling peculiar and suddenly vomited on the floor. He then went to the bathroom and vomited several more times. While he was in the bathroom the youngest child, Jim, came in and fainted on the floor. When insured called his wife and she came in to aid her younger son, Jim, she fainted and fell on the floor. Everyone in the family, Captain and Mrs. Mullins and their four children, all became sick at the stomach and vomited profusely and Mrs. Mullins continued to be nauseated and sick during the entire night and the following day. About ten P.M. the doctor was called and he diagnosed the trouble over the telephone as ptomaine poisoning and prescribed 'Kaopectate.' A dose of this medicine was taken about twelve o'clock by members of the family and seemed to give temporary relief, but about four A.M. Mrs. Mullins was awakened by the labored breathing of her husband. She went to investigate and found he was cold and unconscious. The doctor was called and he came at once and gave him a hypodermic and then left. Soon thereafter he was again summoned and when he returned about five-thirty A.M. Captain Mullins was dead. Early the next morning when someone attempted to fire up the furnace it was still smoking and when the fire box door was opened a great volume of smoke came out of it. One person familiar with furnaces discovered that the control chain for the draft trap which was supposed to work automatically was not working free, but when this defect was remedied...