Travelers Ins. Co. v. Miller

• Decision Date: 07 September 1961
• Docket Number: Nos. 1,3,No. 38845,2,38845,s. 1
• Citation: 122 S.E.2d 268,104 Ga.App. 554
• Parties: TRAVELERS INSURANCE COMPANY v. Betty J. MILLER
• Court: Georgia Court of Appeals

Page 268

122 S.E.2d 268

104 Ga.App. 554

TRAVELERS INSURANCE COMPANY v. Betty J. MILLER.

No. 38845.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Sept. 7, 1961.

Rehearing Denied Oct. 4, 1961.

Syllabus by the Court

1. Evidence that when found at a stated time a deceased body appeared stiff all over, with blue spots, and with some swelling, and expert opinion based on these facts that death had occurred 12 hours or more before such a condition of the body was observed, supported a verdict that death occurred as much as 12 hours before the body was found.

2. (a) Upon proof of a previous inconsistent statement by a witness relative to his testimony and to the case, whether made wilfully or by mistake, there arises a question for the jury to decide whether the witness has been successfully impeached and shown unworthy of belief.

(b) When a written statement of a witness is introduced in evidence by agreement of counsel, admitting not that the statement is true, but that the writing shows what the witness would testify at the trial if present, the statement is subject to impeachment even though the impeaching evidence cannot be called to the witness' mind on cross-examination in the manner provided by Georgia Code § 38-1803.

(c) A jury is authorized to consider, in passing upon the credibility of a witness, a written statement by the witness that a deceased person left the house 'sometime after 1:00 A.M. Sunday, December 20, 1960,' when in fact the deceased was found dead a year before the date contained in the statement.

3. When there was no proof by plaintiff of the amount payable on the death of a deceased employee under a group insurance policy, but defendant's counsel in closing argument admitted that, if plaintiff was entitled to recover any amount, she was entitled to recover $15,000, and the trial resulted in a verdict of $10,000, the amount for which the plaintiff had sued, the court's charge to the jury, that the amount due if defendant was liable was the amount sued for by plaintiff, was not error or harmful to the defendant.

4. It was not reversible error to admit in evidence a hypothetical question containing the assumption that a watch when found on a dead body, stopped at a stated time, was not broken, and the answer of an expert witness to the question, that possibly the watch had just run down a period of time after motion had stopped on the dead man, when there was no positive evidence that the watch was broken and witnesses who had observed the watch when taken from the body, testified that so far as they could observe the watch was not broken and it possibly had just run down.

5. The charge discussed in the opinion was not objectionable on the ground assigned.

The plaintiff (defendant in error on appeal) brought suit to recover insurance proceeds claimed due on account of the death of her husband. The husband had been an employee of Petroleum Helicopters, Inc., until November 18, 1959, when his employment was terminated. He was covered by a group insurance contract between said employer and the defendant (plaintiff in error). The group policy afforded to a terminated employee the priviliege to convert to individual insurance, exercisable within 31 days after termination of his employment. In the event of the terminated employee's death before the expiration of the period allowed for conversion, the policy's death benefit was payable. As to plaintiff's husband, no death benefit was payable if his death occurred after midnight December 19, 1959. The defendant denied liability, contending that the death occurred on December 20, 1959, after midnight of December 19. The trial resulted in a verdict and judgment for the plaintiff. The defendant made a motion for a judgment notwithstanding the verdict, in accordance with its motion for directed verdict, previously made at the close of all the evidence, and for a new trial on the general and special grounds. The trial court overruled defendant's motions on all grounds. The defendant excepted.

W. Hale Barrett, Hull, Willingham, Towill & Norman, Augusta, J. Cecil Davis, Warrention, for plaintiff in error.

Randall Evans, Jr., Thomson, for defendant in error.

HALL, Judge.

1. The question of first importance, upon which depends the necessity to review all the others, is whether or not there is any evidence sufficient in law to support the

jury's verdict that plaintiff's husband, Ercell B. Miller, died before midnight December 19, 1959. The record contains no positive evidence supporting this conclusion. There is supporting circumstantial evidence, in the testimony of witnesses set out below. (We exclude from consideration for the moment the evidence opposing the conclusion.)

The Evidence showed that between 9 p. m., December 19, and 10 a. m., December 20, the temperature ranged from 34~ to 43~ F.

C. C. Tays, the owner of the land where Miller's body was found testified that he discovered Miller's body on the morning of December 20, 1959, as he was coming back home after taking his wife to Sunday School where she had to be before 10, and after 'fooling around' on his property at least 30 minutes. '* * * and I just walked up on the bank of the little old creek and looked down there, and there lay that guy just flat of his back there with his hands up about like this, right in the creek right behind this car. * * * The body that I first saw-- its head and part of its shoulders and its hands was out of the water. He was laying just about like that and--both hands kind of extended. And his face, head and shoulders, nose and mouth then, were above the water and part of his shoulders or maybe all. I was standing right there when they pulled them out. * * * I let them help him pull them out, and he was stiff. He was stiff all over--just about like handling a plank. I'm speaking of the first body. The other body was stiff, too. * * * It--he was laying--the deepest part of the water was where his feet was, you see and part of his shoulders and his head and neck and his hands was above the water.'

Bill Mendenhall, a highway patrolman: 'I found this Mr. Miller behind the automobile laying partially in the water and partially out of the water. * * * It was 10:35 a. m. when I received this call. * * * The stream of water was about five or six feet wide. The depth varied in places, but there where the car was, it was about a foot. Miller was partly in and partly out of the water. His arms was out and--one of his arms was out of the water and part of his head was out of the water and the upper part of his chest was out of the water. The water wasn't deep enough for his whole body to lay down in his water. I don't remember just how his face was in that water. I cannot remember whether his nose and mouth were under the water or not. * * * The entire bodies seemed to be stiff enough to indicate that they were dead bodies to me. They looked like they were stiff, that is, legs, arms, feet and the bodies all over seemed to be stiff. I helped put Miller in the ambulance. I do not recall in lifting him whether he was limber or stiff. I saw them at Hillcrest Hospital when the bodies were disrobed and after they were disrobed. They undressed Miller while I was there, but Moore was undressed when I arrived. That's the only occasion I've had to see a stiff person. Now, how stiff he was, I don't know. * * *'

Ray Bachus, a county investigator: '* * * As to his coloring or complexion, at that time he was--he was gassed up. In other words, he was blue at that time, at the time that we arrived there. * * * He didn't present all of the same appearance he presented in life, as I guess no dead body does; but after a while, he was gassed up and blue. By gassed up, I mean there was some swelling. Rigor mortis had set up, in other words. * * * His stomach had more of a swelling than his chest or arms. He was of a darkish bluish color. Not all over, his feet and arms, they're just more or less--not the--they'll just be spots over the body. Rigor mortis set up through stiffness of the joints. There were spots on him. His stomach was swollen and I could tell from the appearance that he was stiffened. It was between nine and ten when I arrived at the hospital. I would say that it would take--something like 20 to 30 minutes to get him there. That would then have fixed it so that the call must have been by 9:30 or before. * * * Well, if rigor mortis isn't set up in a body, why, you can tell. But it had set up in him. In other words, it would have made it difficult, unusually, for me as a layman to determine. I depended on the interne. I had confidence in the interne. * * * I just accepted whatever they gave me at that time and took his word for it. * * * I got there a little before ten and saw him blue and swollen, with rigor mortis set in, so I knew good and well that he deid a good little while before ten. * * * When I saw him swollen and blue, I knew he had been dead for some length of time before that.'

Clarence Foster, an embalmer: '* * * Rigor mortis is the muscular juices leaving the joints of a person's body which causes stiffness and can set in anywhere from one minute to twenty-four hours after death. It remains for a spell. Like I said, it will set in and it will take it anywhere from one minute to twenty-four hours to set in and pass off. It passes off and the person is not stiff anymore. Warm weather would cause it to set in and pass off more quickly it has been my experience to observe than in cool weather. Well, as a general rule it starts in the joints first and finally permeates the entire body. If I assume a situation where the weather is somewhere between 40 degrees and freezing but maybe 35 degrees, cold enough for frost but not cold enough for ice, would that or not cause rigor mortis to set in more slowly than on a warm day like 65 or 70 degrees, in my opinion? It would set in more slowly in cool weather than it would in warm weather. If a...