Robinson v. New York Life Ins. Co. 69 SD 30

• Citation: 6 N.W.2d 162,69 S.D. 30
• Decision Date: 09 November 1942
• Docket Number: 8449
• Parties: MYRTLE M. ROBINSON, Respondent, v. NEW YORK LIFE INS. CO., Appellant
• Court: Supreme Court of South Dakota

6 NW2d 162 (1942)

MYRTLE M. ROBINSON, Respondent v. NEW YORK LIFE INS. CO.,

Appellant

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. L. L. Fleeger, Judge.

#8449--Affirmed.

Bailey, Voorhees, Woods & Bottum, Sioux Falls, SD

Attorneys for Appellant.

Caldwell & Burns, Sioux Falls, SD

Attorneys for Respondent.

Opinion filed November 9, 1942 [69 SD 31]

POLLEY, J.

This action was brought to recover on a Health and Accident Indemnity clause in a life insurance policy. Plaintiff was a registered trained nurse and in the fall of 1929 was employed as a nurse in the Methodist State Hospital. She continued such employment until some time about June, 1931, when she became ill and was obliged, because of such illness, to quit work and was under a doctor’s care the remainder of the summer. Her illness was diagnosed as diabetes. In June, 1932, she married but never did any work of any kind after her marriage except light household duties.

On the 4th day of September, 1929, defendant issued to the plaintiff the life insurance policy involved in this case. Plaintiff made claim for the benefits provided by the, policy, claiming such benefits from and after June 15, 1931. When the claim was filed, defendant, without raising any question as to the total disability of plaintiff, allowed her the full amount of benefits specified in the policy and paid her the monthly payments therein provided every month for a period of more than seven years; and in addition to paying such benefits defendant waived payment by plaintiff of premiums on the policy.

On the 15th day of August, 1939, defendant, claiming said benefits had been paid under misrepresentations, ceased making such payments; whereupon plaintiff started this action. The cause was tried to a jury. Verdict and judgment were for plaintiff, and defendant appeals.

The Health and Accident clause in the policy provides that if plaintiff became “... so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit, ... ” she would be entitled to the benefits provided by the policy.

The sufficiency of the evidence to support the

[69 SD 32]

verdict is not questioned, but there is considerable controversy over the competency and materiality of the evidence, Plaintiff was a witness in her own behalf and after describing her condition and extent of her debility, she was asked the following question: “Have you at any time since you became ill in 1931 up to the present time engaged in any work or occupation for pay?”, to which she answered, “No, I haven’t.” This was objected to on the ground that “it involves a conclusion and calls for the conclusion of the witness and is incompetent, irrelevant and immaterial, and invades the province of the jury as to what is remuneration, a legal conclusion.” This question called for a simple fact within the witness’s knowledge, she knew whether she had received pay for any work she had performed. The question was not objectionable because calling for a legal conclusion. The fact that she had not performed any work ;or pay did not prove that she could notdo such work, yet, it was material and certainly was not prejudicial to the defendant. Her answer made it plain that she had not performed any such work, and if she had done any such work, defendant was at liberty to prove that fact by any competent evidence.

But the principal controversy in the case is in regard to the opinion evidence given by Dr. Groebner, the physician who had been attending the plaintiff for some four years in the past. He expressed the opinion that diabetes was an incurable disease; he said the plaintiff would not improve and would never be able to carry on the normal activities of a housewife, including the heavier duties; he said she would never be able to carry on her profession as a registered nurse, or any other occupation, and stated that ,,he would never get well. This testimony was objected to because it went to the ultimate issue of fact to be decided by the jury, as to whether plaintiff was totally and permanently disabled as defined by the policy and the instructions of the court. The series of questions asked this witness and which he answered related to whether plaintiff could do certain kinds of work and his answers fall far short of

[69 SD 33]

expressing an opinion on the whole case. The appellant in its brief has cited and lagely relies upon federal cases involving war risk insurance. As to these cases the Note Writer in the Annotation in 111 ALR p. 604, says:

“As previously noted, many of the cases cited in this Annotation involve policies of war risk insurance. While, on principle, there would seem to be no difference, with respect to the admissibility of expert testimony as to the ultimate fact of total or other disability, between these policies and ordinary insurance policies, there seems to be a tendency in cases involving war risk policies, not found in the cases dealing with ordinary policies, to hold such testimony inadmissible.”

In support of this rule appellant cites: United States v. Spaulding, 293 US 498, 55 SCt 273, 79 LEd 617; United States v. Nelson, 8 Cir., 102 F2d 515; United States v. Fields, 8 Cir., 102 F2d 535; United States v. McCreary, 9 Cir., 105 F2d 297; United States v. Ware, 5 Cir., 110 F2d 739. “On the other hand, the state courts, in actions on ordinary insurance policies providing for disability benefits, seem more inclined to hold expert evidence admissible on the ultimate question whether the insured has incurred the disability insured against.” Note, 111 ALR p. 605, citing numerous cases. “The tendency in the state courts to hold expert evidence admissible on the ultimate question of total or other disability insured against appears to be especially pronounced in Texas where this view is supported by several cases.” Note, 111 ALR p.606,

In Piche v. Halvorson, 199 Minn. 526, 272 NW 591, 592, the court comments on the matter of expert witnesses as follows:

“1.Error is claimed because plaintiff’s doctors were permitted to testify that plaintiff was permanently and totally disabled. It is urged that such testimony invades the province of the jury, that it left out of account certain disabilities due to prior injuries of plaintiff referred to in the evidence. Medical testimony is received because jurors, being inexperienced in such matters, are unlikely to [69 SD34] prove capable of forming a correct judgment with respect to them without expert assistance. A physician testifying as an expert may give his opinion as to the extent of disability caused by, and the duration and permanency of, personal injuries. [Citing many cases.]

“It is claimed, however, that such testimony is objectionable because it permits the medical expert to give his opinion upon an ultimate issue, citing United States v. Spaulding, 293 US 498, 55 SCt 273, 79 LEd 617; United States v. Bowman [10 Cir.], 73 F2d 716; United States v. Sparks [7 Cir.], 80 F2d 392; Spencer v. Industrial Commission, 87 Utah 336, 40 P2d 188. The Spau...