Security Benefit Association v. Small

• Decision Date: 17 December 1928
• Docket Number: Civil 2698
• Citation: 272 P. 647,34 Ariz. 458
• Parties: SECURITY BENEFIT ASSOCIATION, a Fraternal Benefit Society, Appellant, v. NANCY SMALL, Appellee
• Court: Arizona Supreme Court

272 P. 647

34 Ariz. 458

SECURITY BENEFIT ASSOCIATION, a Fraternal Benefit Society, Appellant, v. NANCY SMALL, Appellee

Civil No. 2698

Supreme Court of Arizona

December 17, 1928

APPEAL from a judgment of the Superior Court of the County of Cochise. A. M. Sames, Judge. Reversed and remanded.

Messrs Sutter & Roche (Mr. A. W. Fulton and Mr. Geo. R. Allen, of Counsel), for Appellant.

Mr Alexander Murry and Mr. Frank E. Thomas, for Appellee.

OPINION

McALISTER, J.

Nancy Small brought this action against the Security Benefit Association, a fraternal benefit society, to recover the sum called for by a beneficiary certificate issued by that organization to her son, Charles S. Pierce. A verdict for the full amount sought, $2,000, was returned by the jury and from a judgment entered thereon and the order denying its motion for a new trial the association appeals.

The beneficiary certificate, which is in effect an insurance policy, was applied for on April 23d, 1924, and delivered on May 14th in Long Beach, California, where Pierce lived. It named Sadie Pierce, wife, as the beneficiary, but Nancy Small, mother, was later substituted. The insured died on June 9th, 1926, at Warren, Arizona, from pulmonary tuberculosis. All dues called for by the certificate up to that time had been paid and within the proper period thereafter the beneficiary made and filed the necessary proofs of death but the association declined to pay the benefits, claiming that Pierce was not in good health when he applied for and accepted the beneficiary certificate. If this claim be true, under various provisions of the application the certificate itself, and the constitution and laws of the Society the Association was not liable. Hence, the ultimate fact the superior court was called upon to determine was whether Pierce was in good health at the time he applied for and accepted the certificate, and in the course of the trial which resulted in a decision that he was, appellant contends that the court committed several errors in admitting and rejecting testimony and in giving instructions.

The first error assigned is based upon a ruling sustaining an objection to a question propounded to appellee upon cross-examination. She had testified on direct examination that she, her husband, her son and his wife lived in the same home in Long Beach, California, and that "on the 14th day of May, 1924, he (son) was in good health." Immediately following this she stated on cross-examination that they remained in Long Beach until July 10th, or a little less than two months following May 14th, whereupon appellant's counsel inquired "Why did you return to Arizona on the 10th of July?" Appellee objected upon the ground that it was not proper cross-examination but purely defensive matter. It was known by all connected with the case that Pierce had died of pulmonary tuberculosis and the declared purpose of the question was to ascertain first and as a preliminary matter whether they returned to Arizona for his health, and, in case the answer was that they did (as appellant from his knowledge of the case anticipated it would be), follow it up by inquiring whether he was then suffering from tuberculosis or any other insidious disease, and if so how long since its symptoms were first observed by her. It is a matter of common knowledge that tuberculosis is a lingering disease so insidious in character that it may and usually does creep upon its victim and secure a firm hold before he realizes it. Hence, if the answer had disclosed that the return to Arizona had been for his health and that his trouble was tuberculosis, it seems clear that appellant should have been permitted to trace it back, step by step, and disclose to the jury how near its inception came to May 14th when she had positively testified he was in good health. Thus viewed it was cross-examination on the vital issue of the case and was clearly unobjectionable. If the inquiry had disclosed that they did not return to Arizona for his health, or that he was suffering from some disease whose presence is usually discovered in its inception and whose course is run in a short space of time, his state of health then would have had no relevancy to his state of health on May 14th, as contended by appellee, but it is apparent that it might have if he were suffering from a lingering illness whose beginning may have been prior to the latter date.

The sole defense to the action was that Pierce was not in good health when he applied for and accepted the certificate and inasmuch as there was in the evidence when the question was propounded nothing indicating that he was not in good health on both these dates it is argued that it was an attempt to bring out this defense in advance and for this reason was improper cross-examination. This is likewise without merit because appellee's testimony that he was in good health on May 14th rendered admissible any fact that might throw light on his condition at that time, and though the immediate purpose of the question was to obtain information as to his condition on July 10th, this was true only because it was a necessary preliminary to the accomplishment of the ultimate purpose, the ascertaining of his condition on May 14th. This brought it clearly within the scope of the direct examination and rendered it unobjectionable even though it did have the effect of developing defensive matter on cross-examination, for the rule is thus stated in 28 R.C.L. 605:

"If a question is within the scope of the direct examination it is not objectionable on cross-examination because it tends to establish a defense to the action."

See, also, Ah Doon v. Smith, 25 Or. 89, 34 P. 1093; Vogel et al. v. Harris et al., 112 Ind. 494, 14 N.E. 385; West Chicago St. R. Co. v. Reddy, 69 Ill.App. 53; Rush v. French, 1 Ariz. 99, 139, 25 P. 816; Graham v. Larimer, 83 Cal. 173, 23 P. 286.

Assignments 2 and 3 attack the rulings of the court sustaining objections to two interrogatories and their answers appearing in the deposition of Dr. J. Hoyt Huckins, who treated Pierce prior to his return to Arizona. The first of these, number 15, asked him to state any other matters or things connected with his professional care of Charles S. Pierce that came to his knowledge as a physician and tended to show the cause or origin of the disease with which he found him suffering while under his care. To this he answered:

"Either his mother or wife told me that Mr. Pierce had had influenza some time the first part of 1924, and this sickness may have been contributory to his tubercular condition."

The second one, number 18, requested him to tell what in his opinion from his examination of Mr. Pierce and the history given him by Pierce of his physical condition and previous illness was the source or cause of the disease and the time when the disease from which he found Pierce suffering commenced. To this he gave the following answer:

"In my opinion from my examination of Mr. Pierce and the history given by him of his physical condition and previous illness and the kind of work which had been done by him previous and the statement of his mother or his wife which I have referred to, that he had had influenza during the early part of 1924, the source of his tuberculosis may have been the fact that he had worked in the mines during the greater part of his life, or it may have been that the influenza combined with the effect of working in the mines so long, was the cause of the disease and I have no opinion as to the time when the disease from which I found him suffering commenced."

Both interrogatories were objected to because they were too general and the answers upon the ground that they were based upon hearsay. Whether the objections to the questions were well grounded it is unnecessary to determine, since they went merely to form and appellee's right to raise such objection was waived by her failure to make it at the time and in the manner required by paragraph 1716 of the Revised Statutes (Civ. Code) 1913, providing "that no objection to the form of any question or interrogatory can be made, unless such objection was made before and noted by the officer taking the deposition, if taken upon oral examination, or unless written objections to the form of any written interrogatory be made and filed within five days after the service of the copy of such interrogatory."

The objection to these answers was properly sustained because it is clear that they were based, at least in part, upon hearsay. The doctor was not told by Pierce himself that he had influenza in the early part of 1924 but heard it out of court from a third person and he could not say positively whether it was the wife or the mother. The rule under such circumstances is stated in Jones on Evidence, paragraph 376 (3d ed.), in this language:

"Although, as we have seen, the opinions of experts may in some cases be based upon personal knowledge gained from their own observation or examination, they cannot give in evidence opinions based upon information gained from the statements of others outside the courtroom, since in such case the opinions would depend upon hearsay. Thus, when a medical witness is examined as an expert, his opinion is inadmissible if based upon the declaration of nurses or other physicians, made out of court, although, on grounds elsewhere discussed, the declarations of the patient may, under proper limitations, form a part of the basis of such opinions."

It is contended that if the statement was made to Dr. Huckins by the mother it was the admission of a party and therefore not within the hearsay rule, or if made by the wife who at the time was the beneficiary named in the certificate and who testified at the trial that she had a financial...