Poole v. Life & Cas. Ins. Co. of Tenn.

• Citation: 47 Ala.App. 453,256 So.2d 193
• Decision Date: 01 December 1971
• Docket Number: 4 Div. 40
• Parties: Harris Paul POOLE, Administrator of the Estate of Merline Poole, Deceased, v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE.
• Court: Alabama Court of Civil Appeals

Page 193

256 So.2d 193

47 Ala.App. 453

Harris Paul POOLE, Administrator of the Estate of Merline Poole, Deceased, v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE.

4 Div. 40.

Court of Civil Appeals of Alabama.

Dec. 1, 1971.

Rehearing Denied Dec. 22, 1971.

William D. Melton, Evergreen, for appellant.

Albrittons & Rankin, Andalusia, for appellee.

WRIGHT, Judge.

Suit below was upon two insurance policies insuring the life of Windon W. Palmer against death by accident. Plaintiff's intestate was the beneficiary of the policies. Upon trial by jury, verdict and judgment was in favor of defendant, Life & Casualty Insurance Company of Tennessee.

At trial plaintiff made our a prima facie case by presenting a stipulation as to the policies sued upon, their being in force and proper notice of death having been given, together with letters of administration on the estate of the beneficiary, Merline Poole, amd a death certificate showing date and cause of death of the insured. With this evidence plaintiff rested.

Defendant presented in evidence the deposition of Doctor Robert Vickery and medical records from Andalusia Hospital. Certain portions of the records from the hospital were read by counsel to the jury. Objection to such reading was overruled by the court.

Pleading was in short by consent and the general issue was presented as to whether or not the death of the insured was due to bodily injury effected solely through violent, external and accidental means and 'not caused directly or indirectly from, or contributed to, by, bodily or mental infirmities or disease in any form * * *'

The hospital records introduced contained entries indicating the deceased was admitted to the emergency room at 5:00 p.m. on December 24, 1967. His history was that he had been drinking heavily for several days. He stated he had a seizure and fell to the ground, striking his head on the highway. As a result he suffered lacerations and contusions of the forehead requiring some 25 stitches to close. X-rays of the head and spine were normal. On December 25, the insured suffered delirium tremens so badly as to require two policemen to put him in a strait jacket for restraint. He died at 8:50 a.m. on the morning of December 27, 1967. The attending physician's entry in the hospital record lists nine findings as a part of his final diagnosis. Autopsy was performed and a report of its results are included in the records introduced into evidence. The certificate of death states the immediate cause of death to be 'cerebral edema, severe diffuse' due to 'cerebral concussion.' The comment of the pathologist who performed the autopsy was as follows:

'COMMENT: The cause of death in this case was probably cerebral edema and multiple petechial brain hemorrhages suggesting some kind of a force injury to the head. The absence of the heart and lungs at this autopsy prevents the exclusion of two of the most common causes of sudden death in adults. The most common cause of sudden death in adults is coronary artery disease with myocardial infarction and the occurrence of sudden pulmonary embolism is also a frequent cause of rather sudden death * * *'

Appellant first assigns as error the reading of portions of the hospital records to the jury after their admission into evidence. Counsel for defendant was allowed to read from the records over the objection of appellant. Appellant's objection was that such reading unduly emphasized the portions selected to be read. The court, in response to the objection, stated that it would consider specific objections to anything read which appellant considered to be inadmissible.

Appellant's contention is that any reading to the jury of documentary evidence after admission into evidence and before argument to the jury is improper. Such contention is incorrect. We know of no restriction upon reading to the jury at time of introduction or during argument of documentary evidence properly admitted in evidence. It was stated in Bailey v. Tennessee Coal, Iron and Railroad Co., 261 Ala. 526, 75 So.2d 117, that there was no fatal error in allowing the reading from a hospital record prior to the introduction of the record itself, if such record was subsequently introduced in evidence. To contend that records may be read to the jury in final argument, but not at the time of their introduction has no basis in logic.

In Fillman v. State, 41 Ala.App. 175, 127 So.2d 628, it was held that the curtailing of the reading of admitted documentary evidence to the jury was reversible error. The fact that such evidence could have been read during argument to the jury did not prevent error. Duke v. Cahawba Nav. Co., 10 Ala. 82.

We hold assignment of error 3 invalid.

During the reading of the hospital record, appellant objected to a statement therein preceded by the word 'apparently.' The stated objection was as follows: 'I object to it on the grounds that he is reading things preceded by 'apparently,' and a witness can't testify to apparently, and I object to it on that ground.'

The ground of objection stated is not argued in brief. It has long been the rule that if a specific ground of objection is stated, all other grounds are considered waived and are not available as basis for error on appeal. Central of Ga. Ry. Co. v. Wilson, 215 Ala. 612, 111 So. 901. It is further the rule that assignments of error not argued on appeal are waived. It was stated in Cook v. Latimer, 279 Ala. 294, 184 So.2d 807 as follows: '* * * Accordingly, the ground...