Travelers' Ins. Co v. Thornton

• Decision Date: 12 February 1904
• Citation: 46 S.E. 678,119 Ga. 455
• Parties: TRAVELERS' INS. CO. v. THORNTON.
• Court: Georgia Supreme Court

46 S.E. 678

119 Ga. 455

TRAVELERS' INS. CO.

v.THORNTON.

Supreme Court of Georgia.

Feb. 12, 1904.

EXPERT EVIDENCE—MEDICAL FACTS—PRINCIPAL AND AGENT—NOTICE—ACTION ON ACCIDENT POLICY—PROOFS OF LOSS—EVIDENCE.

1. An expert may aid the jury, but he cannot perform the functions of a juror, and, under the guise of giving testimony, state a legal conclusion.

2. An expert may give his opinion as to medical facts, but he cannot determine the legal classification of such facts, and testify as to what was or was not "a contributing cause" of an injury.

3. Where it is sought to charge a principal with notice, he is only required to offer the agent to whom the opposite party claims he gave the notice. He need not undertake to prove a negative by producing all of his agents, in order to show that each did not receive the notice.

4. Evidence of notice to the company's agent that plaintiff had hernia was admissible, not to establish a waiver of the terms of the policy, but to meet the plea of fraudulent concealment, and thereby prevent the avoidance of the whole contract. The charge on this subject was in conformity to Civ. Code, §§ 2099, 2101.

5. Policies of insurance do not stand on the same footing as contracts of affreightment by common carriers. Civ. Code, § 2276. There is no standard form of policy prescribed by statute, and the courts must enforce the contract as made, and cannot relieve against results of the assured's failure to comply with lawful stipulations in the policy.

6. Under the terms of the policy here the plaintiff forfeited to the company any sum for which proof of loss was not made within the time stipulated, and was not entitled to recover an amount greater than that stated in the proof of loss. The excess should be written off.

¶6. See Insurance, vol. 28, Cent. Dig. §1359.

7. There were no pleadings to warrant the admission of evidence as to the value of plaintiff's time.

8. From the very definition of the term, irrelevant testimony is ineffective. Ordinarily, its admission is not cause for the grant of a new trial, unless, from its peculiar nature, or from statements in the assignment of error, it is shown to have an effect prejudicial to the complaining party.

9. The defendant's objection to the admission of testimony as to the plaintiff's character as irrelevant should have been sustained. But there was no claim that it was prejudicial, and the answer of the witness that "he did not know, but supposed it was good, " itself shows that this testimony as to character was not harmful. This being a second verdict, a new trial will not be granted for the error.

10. The case was tried in accordance with the former ruling, reported in 116 Ga. 121, 42 S. E. 287, 94 Am. St. Rep. 99. The evidence was conflicting, but sufficient to sustain a verdict for plaintiff for eight weeks' disability. None of the assignments of error present grounds requiring the second grant of a new trial.

(Syllabus by the Court.)

Error from City Court of Americus; C. R. Crisp, Judge.

Action by W. J. Thornton against the Travelers' Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed, with directions.

E. A. Hawkins, for plaintiff in error.

J. H. Lumpkin, for defendant in error.

LAMAR, J. 1, 2. Under the decision in Thornton v. Travelers' Ins. Co., 116 Ga. 121, 42 S. E. 287, 94 Am. St. Rep. 99, it was left for the jury to say whether the injury was caused by the fall and aggravated by the hernia, or whether the hernia was a contributing cause to the injury. A physician could give an opinion on hypothetical facts on what he had heard other witnesses testify in the case, or on facts discovered by his own investigation. He could state what, in bis opinion, would have been the effect of the blow to the plaintiff without a hernia, and what the effect of the blow with the hernia. An expert can testify as to what was the cause of death, or of an injury, or as to the effect of disease, or as to the effect of a blow upon one sound or upon one unsound. He can give his opinion on physical facts or as to the medical facts, but he cannot determine the legal classification of such facts. It was not proper for him to use the language of the decision and testify that the hernia was a "contributing cause." That was a mixed question of law and fact, to be determined in the light of all the evidence; and it would have been as improper to permit such testimony as it would have been in an ordinary case to allow a witness to say that a particular act amounted to negligence, or to contributory negligence, or that another fact was the proximate or remote cause. The expert may aid the jury, but he cannot act as a member of the jury; nor, while on the stand, can he transcend the functions of a witness, and under the guise of giving testimony state a legal conclusion. Civ. Code, § 5287.

3. Where it is sought to charge a principal having many agents with notice, it is not necessary for him to undertake to prove a negative, and...