Standard Life Ins. Co. of the South v. Foster

• Decision Date: 11 December 1950
• Docket Number: No. 37724,37724
• Citation: 210 Miss. 242,49 So.2d 391
• Parties: STANDARD LIFE INS. CO. OF THE SOUTH v. FOSTER.
• Court: Mississippi Supreme Court

Page 391

49 So.2d 391

210 Miss. 242

STANDARD LIFE INS. CO. OF THE SOUTH v. FOSTER.

No. 37724.

Supreme Court of Mississippi, Division A.

Dec. 11, 1950.

Brandon, Brandon, Hornsby & Handy, Natchez, for appellant.

W. A. Geisenberger, Natchez, for appellee.

McGEHEE, Chief Justice.

Amos Foster, the husband of the plaintiff Victoria Foster, was insured at the time of his death for the sum of $1,000 payable in such event to his wife as beneficiary under the provisions of an industrial limited accident policy issued to the insured by the defendant, Standard Life Insurance Company of the South. The policy recites that the insurance company 'hereby insures the person named in the policy against the result of bodily injuries received during the time this policy is in force, and effected solely by external violent and accidental means * * *'.

The bodily injuries above referred to had to be caused in the instant case by the insured being struck by a vehicle propelled by gasoline, and his death had to be the proximate result of the bodily injuries so received solely by such external violent and accidental means.

It was shown on behalf of the plaintiff, and there was no substantial contradiction thereof, that the insured Amos Foster sustained severe bodily injuries, consisting of 'fracture dislocation ankle' and 'multiple rib fractures' on November 18, 1948, while the policy was in force, when he was struck by a motor vehicle driven by one Waggonner on the streets of Natchez, at a time the insured was about his duties as a street sweeper on the evening of that day. That the insured remained in the hospital continuously from the time of his injuries until his death on December 1, 1948.

The principal issue presented to the jury for decision was whether the death of the insured was the proximate reslt of the bodily injuries thus sustained, or whether his death was due to an attack of epilepsy; also he is alleged to have suffered from such an attack on both the 19th and 20th of November 1948. The attending physician testified that he was not present when either of the attacks of epilepsy occurred, but that he was informed thereof by some attendant or nurse, and was told by some member or members of the family that the insured had previously suffered from some kind of 'spells', mentioning only the insured's wife in particular who had given him any information in regard thereto, and he stated that he thought when he talked to the wife of the insured 'she implied that it was some spell other than convulsive seizure' that he may have had in the past.

Two of the attacks of epilepsy which were shown by entries on the hospital record in the handwriting of the attending physician was alleged to have occurred on November 9 and on December 1, 1948. But there was no direct proof of the insured having had epilepsy, except that on December 4, 1948, a statement in writing was procured from the plaintiff wherein she stated that Dr. Rucker (a colored physician) had 'treated Amos for nervous spells in 1946 and Amos had not had one of these spells for some time.' The statement further recited that: 'I kept medicine to give Amos when he had one of these spells. * * * Amos did not go out of his head when he had one of these spells. He would get awfully weak and would go to sleep. When Amos waked up he would be all right. Amos had not had one of these weak spells since last year. * * * Amos had not been treated by a physician since last year for anything. I have not had to give Amos any V 4 or of this nerve medicine this year.'

However, the plaintiff testified upon the trial that she was at the hospital on the morning of November 19th when the insured is alleged to have had the first convulsion there and that she did not know anything about it, and she was asked 'Did you ever tell anybody he had ever had a convulsion? A. No, sir. Q. Or a fit? A. Nothing about no fit. Q. Did you ever know of him having one? A. No, sir.' On that morning, the insured had a cast on his leg and Victoria said that both Amos and the doctor told her that 'his ribs were crushed.' She further testified that she had never seen Amos have any sort of a spell, and that he had been working every day for the city for many years prior to being struck by Mr. Waggonner's automobile.

The attending physician, Dr. Butler, gave a certificate to the State Bureau of Vital Statistics in which he stated that the insured had a 'fracture disclosation left ankle' and 'multiple rib fracture' on the left side, and under the head of major findings' therein he stated 'sustained by being struck by a motor truck on street of Natchez while pushing a cleaning cart.' This certificate further stated that the death was 'not due to external causes.' The certificate was filed as an exhibit to the answer of the insurance company, and as constituting prima facie proof of the facts therein stated, when this suit was brought by the beneficiary to recover the insurance.

It is assigned as error here that the trial court permitted the laboratory technician at the hospital to identify the hospital record partly in the handwriting of Dr. Butler, the attending physician, and which disclosed that after the insured had been carried to the hospital on the night of November 18th, he had a convulsion early the next morning, the same morning that his wife visited the hospital, as hereinbefore stated, and another convulsion on the morning of December 1st, when he died, and which hospital record failed to show that a blood chemistry had been done on the patient. This testimony was objected to as hearsay and it was contended that the attending physician was available as a witness and could testify instead. However, the defendant insurance company introduced the attending physician later, and he either admitted or failed to contradict the facts stated in the hospital record, and did not testify that a blood chemistry had in fact been done on the patient.

The admission of incompetent evidence is not available as error on appeal when the appellant, on his own behalf, introduces evidence which admits, confesses, or otherwise sufficiently establishes the facts sought to be shown by the incompetent evidence. Ruffin v. Schwabacher, 156 Miss. 326, 126 So. 14; 4 C.J. 969, 979, 5 C.J.S., Appeal and Error, Sec. 1724, Sec. 1732; State v. Furney, 41 Kan. 115, 21 P. 213; McCracken v. Robison, 2 Cir., 57 F. 375.

It is also contended that it was error to permit Dr. Rice to testify in the manner in which he did as an expert for the plaintiff for the reason that the questions asked him were for the purpose of impeaching the testimony of the attending physician before the latter had been introduced as a witness and any predicate had been laid for that purpose. However, the objection was not made on that ground at the trial, but upon the ground that the questions were not sufficiently hypothetical, and the objection also seems to have been made on the ground that it assumed that no blood chemistry had been done on the patient without proof of that fact having been made except by hearsay evidence. But, we think that the questions were sufficiently hypothetical, and that it was not reversible error for the plaintiff to be allowed to prove by the laboratory technician that no blood chemistry had been done on the patient, and...