Ricard v. Prudential Ins. Co. of Am.

• Court: New Hampshire Supreme Court
• Writing for the Court: WOODBURY, Justice
• Citation: Ricard v. Prudential Ins. Co. of Am., 87 N.H. 31, 173 A. 375 (N.H. 1934)
• Decision Date: 05 June 1934
• Parties: RICARD v. PRUDENTIAL INS. CO. OF AMERICA.

173 A. 375

RICARD

v. PRUDENTIAL INS. CO. OF AMERICA.

Supreme Court of New Hampshire. Hillsborough.

June 5, 1934.

Transferred from Superior Court, Hillsborough County; Page, Judge.

Assumpsit on life policy by Yvonne C. Ricard against the Prudential Insurance Company of America. Verdict for plaintiff, and cause transferred on defendant's exceptions.

Judgment on the verdict.

Assumpsit on a policy of life insurance, the material portions of which are as follows:

"Accidental Death Benefit. One thousand dollars, payable in addition to the Face Amount of Insurance, * * * in event of death toy accident as defined in the clause headed 'Provisions as to accidental Death Benefit', on the second page hereof, subject to the provisions therein set forth."

"Provisions as to Accidental Death Benefit. The Amount of Accidental Death Benefit specified on the first page hereof shall be payable in addition to the Face Amount of Insurance immediately upon receipt of due proof that the death of the Insured occurred during the continuance of this Policy while there was no default in the payment of premium, as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, * * * provided, however, that no Accidental Death Benefit shall be payable if the death of the Insured resulted * * * directly or indirectly from bodily or mental infirmity or disease in any form."

At the time of his death, the insured, Joseph A. Ricard, was thirty-two years of age. He was short, well developed, and somewhat, though not excessively, overweight. Prior to the day of his death, he had never lost any time from his work due to sickness with the exception of one occasion when he had a cold. He had never suffered from pains in the region of his heart, nor of abnormal shortness of breath for one of his physique.

About 4 o'clock in the afternoon of April 10, 1931, while engaged in operating a circular splitting saw, he was struck on the right forearm by a small piece of wood which was thrown back by the saw. This wedge, or sliver, weighing only a few ounces, was thrown with sufficient force to inflict a V-shaped wound, approximately an inch and three-quarters on each side, and about an eighth to a quarter of an inch deep. A temporary dressing was immediately applied at the office of the corporation for which he worked, and he was then taken to the office of a local doctor who cleaned the wound and closed it with seven stitches.

At the doctor's office, on the way home, and during the evening, the insured was pale or, as some witnesses described it, greenish in color, he had some difficulty in breathing, and also complained of intermittent pains in the region of his heart. He was not able to eat any supper, but soon after 7 o'clock started to go to the theater with a friend. On the way he complained of more pain about his heart, and went again to the office of the doctor who had treated him earlier in the day. The doctor examined his heart with a stethoscope but found nothing wrong with it. He did, however, prescribe pills containing strychnine. After taking a pill, the insured felt better, and continued on to the theater although the doctor had advised him to go home.

Soon after he had seated himself in the theater the insured collapsed. He was taken out into the lobby and a doctor was summoned who pronounced him dead.

After the body had been embalmed, an autopsy was performed. The doctor who performed the autopsy testified that he found the heart in a condition to indicate that the insured was suffering from and had died of angina pectoris. Other medical experts called by the defendant testified to the same effect in answer to hypothetical questions.

The plaintiff produced two doctors of long experience, one of whom had treated the insured for hernia in 1921, and had given him a physical examination in 1928. In answer to hypothetical questions, both gave it as their opinion that the insured died of an embolism which formed at the wound on his forearm, proceeded in the blood stream through the heart, and lodged in the pulmonary artery.

The defendant seasonably moved for a nonsuit and for a directed verdict on the ground that there was no competent evidence that the death of the insured "was due solely to the accident, independent of all other causes." These motions were denied and the defendant excepted.

There was a verdict for the plaintiff which the defendant moved to set aside on the grounds that it was against the law and the evidence and the weight of the evidence. This motion was also denied subject to exception.

Transferred by Page, J.

Albert Terrien, of Nashua, for plaintiff.

Thorp & Branch and F. W. Branch, all of Manchester, for defendant.

WOODBURY, Justice.

The defendant argues in support of its motions that the plaintiff's doctors were not qualified by either study or experience to give expert opinions on the medical question involved. It has long been the law of this state that the qualifications of a witness to give expert opinion presents a preliminary question of fact to be determined at the trial by the presiding justice, and will not, in the absence of abuse of discretion, be reviewed in this court unless that question of discretion "is specially reserved by him for revision." Jones v. Tucker, 41 N. H. 546; Taylor v. Railroad, 48 N. H. 304, 311, 2 Am. Rep. 229; Dole v. Johnson, 50 N. H. 452; Hess v. Shurtleff, 74 N. H. 114, 65 A. 377. For further authorities, see Henings Dig., p. 628.

Since 1901, when the present judicial system was established, the practice of reserving questions of discretion for decision in this court has become obsolete. Questions of discretion must now be decided by the superior court. The only question before us is whether there is any evidence upon which the decision of that court could reasonably be made. Nawn v. Railroad, 77 N. H. 299, 304, 91 A. 181.

The record discloses that the plaintiff's doctors were...