Opinion
6 Div. 979.
March 22, 1928.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
London, Yancey Brower and Jim C. Smith, all of Birmingham, for appellant.
It was necessary that the complaint aver facts showing the policy was in full force and effect and covered the period for which compensation was sought. Penn. Cas. v. Perdue, 164 Ala. 508, 51 So. 352; Nat. Life Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45; U.S. H. A. Ins. Co. v. Savage, 185 Ala. 232, 64 So. 340; Gilliland v. O. R. C., 216 Ala. 13, 112 So. 225; U.S. H. A. Co. v. Veitch, 161 Ala. 630, 50 So. 95; Locomotive Engineers' Mut. Life Accident Ins. Ass'n. v. Hughes, 201 Ala. 58, 77 So. 352; Life Casualty Ins. Co. v. Foster 212 Ala. 70, 101 So. 765; Nat. Life Acc. Ins. Co. v. Hannon, 212 Ala. 184, 101 So. 892. A complaint is construed most strongly against the pleader on demurrer. City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771. Charges 18 and 10 were erroneously given for plaintiff. Continental Cas. Co. v. Paul, 209 Ala. 166, 95 So. 814, 30 A.L.R. 802; Alexander v. W. O. W., 161 Ala. 561, 49 So. 883; Hotel Tutwiler v. Evans, 208 Ala. 252, 94 So. 120; Feore v. Trammel, 213 Ala. 293, 104 So. 808; Olinsky v. Ry. Mail Ass'n, 182 Cal. 669, 189 P. 835, 14 A.L.R. 784; Rock v. Travelers' Ins. Co., 172 Cal. 462, 156 P. 1029, L. R A. 1916E, 1196; Reaves v. Maybank, 193 Ala. 614, 69 So. 137; Life Cas. Co. v. Street, 213 Ala. 588, 105 So. 672; Ham Co. v. Mizell, 215 Ala. 143, 110 So. 372. A medical expert should not be allowed to state, over objection, what in his judgment was the cause of death; same being a conclusion on a matter directly in issue. Travis v. L. N., 183 Ala. 415, 62 So. 851; Heralds of Liberty v. Collins, 216 Ala. 1, 110 So. 283; Int. C. M. Co. v. Ind. Comm., 293 Ill. 524, 127 N.E. 703, 10 A.L.R. 1010. Where the insured, at the time he receives an injury, is suffering from an active disease or defect, which, acting with the injury as a contributing factor, brings about the death, or when such existing active disease or defect aggravates the effect of the injury, or the injury aggravates the effect of the active disease, and both, acting together, cause death, the injury is not the sole cause of the death. The affirmative charge should have been given for defendant. Leland v. United Com. Travelers, 233 Mass. 558, 124 N.E. 517; Penn v. Standard L. Ins. Co., 160 N.C. 399, 76 S.E. 262, 42 L.R.A. (N.S.) 597; Penn v. Standard L. A. I. Co., 158 N.C. 29, 73 S.E. 99, 42 L.R.A. (N.S.) 593; Stanton v. Travelers' Ins. Co., 83 Conn. 708, 78 A. 317, 34 L.R.A. (N.S.) 445; Binder v. National Masonic Acc. Ass'n, 127 Iowa, 25, 102 N.W. 190; White v. Standard Life Acc. Ins. Co., 95 Minn. 77, 103 N.W. 735, 884, 5 Ann. Cas. 83.
Black Fort and G. Ernest Jones, all of Birmingham, for appellee.
On the question of the refusal of the affirmative charge to defendant, counsel cite U.S. F. S. Co. v. Hood, 124 Miss. 584, 87 So. 119, 15 A.L.R. 605; Horsfall v. Pacific Mutual, 32 Wn. 132, 72 P. 1028, 63 L.R.A. 425, 98 Am. St. Rep. 846; Modern Woodmen Acc. Ass'n v. Shryock, 54 Neb. 250, 74 N.W. 607, 39 L.R.A. 826; Stanton v. Travelers' Ins. Co., 83 Conn. 708, 78 A. 317, 34 L.R.A. (N.S.) 445; Cont. Co. v. Lloyd, 165 Ind. 52, 73 N.E. 824; Stand. Acci. Ins. Co. v. Hoehm, 215 Ala. 109, 110 So. 7.
This is a suit upon an accident policy of insurance, and the code form of complaint on life insurance policies (form 12) does not apply. Gilliland v. Order of R. R. Conductors, 216 Ala. 13, 112 So. 225. This case was tried upon count A alone, and, while said count avers that the death and accident occurred "during the life of the policy," this is a mere conclusion as no facts are set forth showing such a compliance with the terms of the contract on the part of the insured as to render it in force at the time of the accident, resulting in death, and the trial court erred in not sustaining the defendant's demurrer to said count. National Life Accident Ins. Co. v. Hannon, 212 Ala. 184, 101 So. 892. Moreover, the complaint shows that the accident occurred before the policy was issued, and, while this may have been a clerical misprision, the complaint must be more strictly construed against the pleader and inferences will not be indulged to uphold same against an appropriate ground of demurrer.
As the only count upon which this case was tried was subject to defendant's demurrer, we could here conclude this opinion, but, assuming that the complaint will be properly amended so as to show a valid and subsisting contract at the time of the injury, we shall treat such of the assignments of error as may be helpful upon another trial, especially whether or not the policy covered the alleged accident, for, if it did not, an amendment and proof of the existence of the contract would amount to nothing.
The policy contains the usual clause:
"For loss resulting directly and exclusively of all other causes, from bodily injury sustained at any time during the life of this policy solely through external, violent, and accidental means (excluding suicide, sane or insane)."
Again:
"If the death of the insured shall result solely from 'such injury' and within 120 days from the date of the accident," etc.
Some of the courts, including our own, have construed this clause to mean that the accident shall be the proximate cause of death and not exclusive of other conditions, means, or circumstances. Standard Accident Ins. Co. v. Hoehn, 215 Ala. 109, 110 So. 7. In said case we cited and followed the Arkansas court in the case of Fidelity Co. v. Meyer, 106 Ark. 91, 152 S.W. 995, 44 L.R.A. (N.S.) 493. This case holds, where accidental injury aggravated a disease and hastened death so as to cause it to occur at an earlier period than it would have occurred but for the accident, it is the direct, independent, and exclusive cause of death at the time. In the case at bar, while the undisputed evidence shows that the insured had appendicitis, there was evidence from which the jury could infer that while being taken to the hospital in a vehicle he was jolted off of the cot or seat, whereby his appendix was ruptured or bursted, and that if he had been operated on before the said bursting or rupture he would probably have recovered. At least this was the plaintiff's theory of the evidence, and, whether the less reasonable or plausible or not, it was a question for the jury as to whether or not there was an accident, and whether or not the appendix was bursted as a result of same, and whether or not said injury, if there was one, hastened the death of the insured. There is conflict in the authorities on this subject, and some of the cases are in irreconcilable conflict, but a good deal of confusion has arisen out of not drawing a distinction between certain clauses in the policy dealing with the accident or injury resulting in death and another clause excepting the liability from the terms of the policy, to wit:
"Where death has resulted wholly or in part, directly or indirectly, from disease or bodily infirmity."
Here, we have no such clause as the one last above quoted.
The question to the witness Dr. Cocciola, made the basis of the eighteenth assignment of error, while calling for the judgment of the witness, was based upon his own knowledge of the facts hypothesized rather than calling for his opinion based upon hypothesized facts narrated by other witnesses, and it seems that when medical men know the facts they can give their opinion based on their own knowledge as to the cause of death or of disease or as to the consequence of the wounds, but, when not acquainted with the facts and which are disputed, they are not allowed to express an opinion upon the case on trial for the case as they determine it might not be the case the jury would find from the evidence. Then they may be examined hypothetically and express an opinion. Page v. State, 81 Ala. 16. The question here called for the opinion of the expert as to results based upon the facts hypothesized and which related to the nature and condition of the appendix which, subsequent to the claimed injury, received an internal examination. The fact that it was internal and the knowledge of the witness was external only prior to the operation went to the value or probative force of the opinion rather than its admissibility.
The case of Travis v. L. N. R. R., 183 Ala. 415, 62 So. 851, involved a very different question as the witness knew nothing about the oysters and was called upon to testify, in effect, that they were spoiled and which was a disputed fact. Nor was there error in ruling upon the evidence of this witness as to assignments of error 16 and 19.
The trial court erred in giving the plaintiff's requested charge 18, made the basis of assignment of error 9. It assumes that an injury was sustained from the hypothesized fall or accident and invaded the province of the jury as it was for it to decide whether or not the insured was injured even if there was an accident or fall.
The trial court will not be reversed giving plaintiff's charge 10. It could have more properly defined the kind of accident so as to bring it within the influence of the policy, but this could have been explained by a countercharge at the request of the defendant.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, GARDNER, and BOULDIN, JJ., concur.