Opinion
No. 40179.
September 24, 1956.
1. Trial — defendant's peremptory instruction — plaintiff's evidence — inferences — taken as true.
For purpose of determining whether defendant's requested peremptory instruction should be given, it is necessary that the evidence for plaintiff, together with all logical inferences therefrom, should be taken as true.
2. Labor Unions — insurance — disability benefits — evidence — sufficient for jury — peremptory properly refused.
In action for disability benefit against Brotherhood of Railroad Trainmen Insurance Department on ground that plaintiff was disabled by Parkinson's disease, evidence was sufficient for the jury, and the peremptory was properly refused.
3. Appeal — medical textbook — not part of record — Supreme Court not to consider — where referred to in appellant's brief.
Where certain textbook on medicine referred to in appellant's brief which appellant asked the Court to consider was on a purely scientific subject and was not a part of the record, Supreme Court would give no consideration whatever to it.
4. New Trial — verdict for plaintiff — against weight of evidence.
In such case, verdict for plaintiff was against the great weight of evidence and the Trial Court should have granted a new trial.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Franklin County; JAMES A. TORREY, Judge.
Brandon, Brandon, Hornsby Handy, Natchez, for appellant.
I. The defendant's motion for peremptory instruction to the jury to return a verdict for the defendant should have been granted. Cecil's Textbook of Medicine (7th ed.), pp. 1555-1558.
II. The Court erred in giving to the plaintiff his Instruction No. 1, which reads as follows: "The Court instructs the jury for the plaintiff that, in order to recover in this case, he need only to prove by a preponderance of the evidence that he was by reason of physical disability, resulting from Parkinson's disease contracted or or about December 1st, 1952, continuously and wholly for a period of at least two (2) years from December 1st, 1952, prevented, in the exercise of ordinary care and prudence, from transacting or performing any of the substantial and material acts necessary to the performance of the duties of any occupation or work for compensation or profit, without thereby jeopardizing his life or suffering great physical pain and anguish. Johnsmanville Products Corp. v. McClure, 209 Miss. 240, 46 So.2d 539; Marble v. State, 194 Miss. 386, 15 So.2d 693; The Great Atlantic Pacific Tea Co. v. Mulholland, 226 Miss. 499, 84 So.2d 504; Godfrey v. Meridian Ry. Light Co., 101 Miss. 565, 58 So. 534; Jackson Light Traction Co. v. Taylor, 112 Miss. 60, 72 So. 856; Metropolitan Life Ins. Co. v. Evans, 183 Miss. 859, 184 So. 426; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764.
III. The Court erred in refusing to give to the defendant its requested Instruction No. 2, which is as follows: "The Court instructs the jury for the defendant that unless the jury believes from a preponderance of the evidence in this case that on December 1, 1952, the plaintiff was suddenly stricken and afflicted with the disease known as Paralysis Agitans or Parkinson's Disease and that thereby and from that date such disease did continuously necessarily and totally disable the plaintiff to the date of filing of this suit and did require the plaintiff to have, and plaintiff did have for and during all that time, the personal attendance of a licensed physician at least once each seven days, and unless the jury finds from the evidence that such sickness was of another and different type than that from which plaintiff was suffering and disabled between the dates of June 12, 1949, and July 12, 1951, then it is the sworn duty of the jury to return a verdict herein for the defendant." W.A. Geisenberger, Natchez, for appellee.
I. Judicial notice has been taken of the fact that medical experts are not always right in their opinions. Jefferson Standard Life Ins. Co. v. Hurt, 254 Ky. 603, 72 S.W.2d 20; Strauss v. Hannig, 6 N.Y.S.2d 459, 169 Misc. 29; El Paso Electric Co. v. Kennon (Tex.), 69 S.W.2d 532; International Paper Co. v. Handford, 223 Miss. 747, 78 So.2d 895; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442.
II. The jury not only heard the testimony of the doctors, but actually saw the appellee demonstrate his manner of walking and also viewed the tremor in his hand; by this demonstrative evidence, the jury were in a position analogous to that of the jury which has viewed the scene of an accident set up and presented to show the manner in which an accident or occurrence took place. Mississippi Cent. RR. Co. v. Smith, 173 Miss. 507, 154 So. 533.
III. The jury's verdict or findings based on conflicting testimony will not be disturbed on appeal. Cazeneuve v. Martinez (Miss.), 28 So. 788; Mississippi Digest, Appeal and Error, Key No. 1002.
IV. A verdict or finding by the jury will not be disturbed as against the evidence because of a mere preponderance of evidence against it, but will be set aside only when it is palpably against the weight of evidence or clearly shows that the jury was mistaken, or were influenced by passion, prejudice or corruption. King v. Rowan, 82 Miss. 1, 34 So. 325; Mississippi Digest, Appeal and Error, Key No. 1003.
V. The evidence of the physicians made a question of fact for the decision of the jury and should not be disturbed by the Supreme Court on appeal. Leflore v. Justice, 9 Miss. 381, 1 Sm. M. 381.
VI. The question of the credibility of witnesses and the weight to be given to their evidence is one for the jury; and the jury having elected to give credence to the testimony of Dr. Costly supplemented by the demonstration had in their presence, the Lower Court, in acting upon appellant's request for a peremptory instruction, was required to treat the evidence of appellee as proving every fact favorable to his case, which was established either directly or by reasonable inference. Brown-Miller Co. v. Howell, 224 Miss. 136, 79 So.2d 818; Illinois Cent. RR. Co. v. Harrison, 224 Miss. 331, 80 So.2d 23; Shelton v. Underwood, 174 Miss. 169, 163 So. 828.
VII. It was for the jury to say under all of the evidence whether the appellee was totally disabled. American Bankers Ins. Co. v. White, 171 Miss. 677, 158 So. 346.
VIII. Insured under health policy is totally disabled if his illness prevents him from doing the substantial acts required of him in his business, or if his physical condition is such that, in order to effect a cure or prolongation of life, common care and prudence require that he cease all work. Equitable Life Assur. Society v. Serio, 155 Miss. 515, 124 So. 485; Lipnick v. New York Life Ins. Co., 211 Miss. 833, 52 So.2d 916; 42 Words and Phrases (Perm. ed.), pp. 125-36.
IX. The attack upon appellee's Instruction No. 1 is unwarranted. Mutual Benefit Health Acc. Assn. v. Mathis, 169 Miss. 187, 142 So. 494; Metropolitan Cas. Ins. Co. v. Cato, 133 Miss. 283, 74 So. 114; Equitable Life Assur. Society v. Serio, supra; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750, 752; Woodmen of the World Life Ins. Society v. Johnson, 196 Miss. 287, 16 So.2d 285; Lipnick v. New York Life Ins. Co., 211 Miss. 833, 52 So.2d 916; American Life Ins. Co. v. Byrd, 210 Miss. 50, 48 So.2d 614; American Bankers Ins. Co. v. White, 171 Miss. 677, 158 So. 346; North American Acc. Ins. Co. v. Henderson, 180 Miss. 395, 177 So. 528; World Ins. Co. v. McKenzie, 212 Miss. 809, 55 So.2d 462; Vol. VII, Cyc. of Insurance Law, Sec. 1679.
X. No error was committed by the Lower Court in refusing appellant's requested Instruction No. 2. World Ins. Co. v. McKenzie, supra; American Bankers Ins. Co. v. White, supra; American Life Ins. Co. v. Byrd, supra.
James T. McLemore, by his declaration, sought to recover from the Brotherhood of Railroad Trainmen Insurance Department, Inc., a disability benefit in the sum of $2,400.00 for the two year period commencing December 1, 1952, on account of paralysis agitans or Parkinson's disease. The answer of the defendant denied in detail every material allegation of the complaint. There was a verdict for the plaintiff for the full amount and, from the judgment entered thereon, the Trainmen appealed.
McLemore in 1939, while he was a brakeman on the Illinois Central railroad, took out a certificate of insurance with the Trainmen. One provision thereof insured against total disability for any one type of sickness in the amount of $100 per month for not in excess of 24 months.
Early in 1949 he suffered a disability on account of hypertension, or high blood pressure, and was paid benefits for three months. He then went back to work, but, in a short time, for the same reason he had to quit. He thereupon made proof of his disability, and the Trainmen thereafter paid the full benefit of $2,400 for the period from June 12, 1949, to June 12, 1951, at which time he was still disabled. In the meantime, he was retired by the railroad company on account of his disability, and he has since received $105 monthly as a retirement benefit.
On July 17, 1951, and May 21, 1952, by letter, McLemore inquired of the Trainmen if he was entitled to benefits on a type of sickness other than hypertension.
McLemore testified that, about four months after receiving his last insurance benefit, he recovered his health. He owned 444 acres of land and had been raising cattle in a small way, as he had not been confined to bed during his disability. He did such work as was necessary in connection with these operations. While he was not entirely normal, he was in pretty fair health and was not disabled to any great extent. In October and November 1952, his health was good. When he awoke and got up on December 1, 1952, his arms were shaking. He had not previously noticed any tremor in his arms, legs or body, nor had anybody else made comment thereon. Later that day, he drove his car to Fayette, Mississippi, to see Dr. Harper; and the next day his wife drove him to Natchez to see Dr. Dixon. He was sent promptly to a hospital in New Orleans where he remained for nearly three weeks. Other doctors treated him and he was also treated by chiropractors and spent some time in a chiropractic hospital. In 1952, 1953 and 1954 he did about the same work on his farm that he had done previously.
In August 1954 Dr. L. Costly, who practiced medicine at Meadville, examined him. The doctor testified that he knew nothing about McLemore's previous health and did not ask about it to aid in his diagnosis, nor did McLemore tell him much about his previous illnesses. He took his blood pressure and it was normal, about 140 or 145 over 90. When asked what other tests he made, the Doctor replied "I observed him walk and the set of his eyes like you usually do and see how he balances up. That's all I could do," and "he couldn't walk good and he just has that tremor in his right hand". He referred to no other symptoms. He was of the opinion that the plaintiff had a mild case of paralysis agitans or Parkinson's disease. The witness admitted that this disease is not suffered suddenly unless from a cerebral accident mild enough not to cause apoplexy, and that a victim may not notice the development for several months. He said that McLemore, if he tries, can hold his hand pretty still. Of all the doctors, who had treated the plaintiff, only Dr. Costly testified in his behalf. It is apparent that this examination was a superficial one. Thereafter however he did see and observe McLemore several other times.
On the contrary, Dr. Will T. Harper, who had treated McLemore since 1945-6 for high blood pressure, at first with a kidney involvement, when he made an examination after the alleged sudden attack on December 1, 1952, testified that "I thought he had a stroke, that is a cerebral hemorrhage".
Dr. Clifford Tillman testified that he examined the plaintiff at the instance of his attorney on March 1, 1954. At the time, he got a complete history, with the patient's complaint, and made complete physical and neurological examinations. The history began with an injury to a finger, treatment by Dr. Dixon, the information that he had high blood pressure, his retirement for that reason in 1949, and the details of the sudden onset of involuntary motions of both hands and difficulty in walking on December 1, 1952. His general physical examination revealed no significant findings except that the blood pressure was 160 over 92. The neurological examination disclosed athetoid, or involuntary movements of the right hand, which McLemore could not adequately control. There were no significant tremors. The only abnormal reflexes were on the left side. There was a slight rigidity about the upper right extremity. His gait in walking was somewhat hesitant, with a tendency to drag the right leg. His diagnosis: McLemore's past history showed hypertension; he had hypertension at the time of this examination; and he suffered a stroke on December 1, 1952, with involvement of the basal ganglia of the brain on the left side, in which area an injury, hemorrhage or clot may result in atheosis. In his opinion, the sudden onset indicated a stroke, and no other diagnosis could be considered. Nothing in the history or neurological findings was compatible with Parkinson's disease. The doctor described as characteristic symptoms and signs of Parkinson's disease the following: It develops slowly and not on sudden onset. The patient may be completely unaware until it is pointed out by relatives or friends. The muscular spasm affects predominantly the face and upper and lower extremities. The tremor is such as is sometimes seen in an old man standing on a street corner. There is a spasticity in the lower extremity, and the gait is not hesitant, but propulsive, and he walks by leaning forward and may actually run into a wall or someone. The face assumes a mask like expression, and when the patient smiles at all, the expression is wax like. The poor control of the facial muscles results in saliva drooling at the corner of the mouth. The face and extremities may develop increasing tremor. Speech and swallowing may be seriously affected. In the doctor's opinion McLemore had no symptoms whatever of Parkinson's disease.
Dr. Thomas H. Gandy testified that he made an examination of the plaintiff on January 27, 1955. He took a complete history and made complete physical and neurological examinations. The history represented that McLemore, upon awakening December 1, 1952, noticed both of his hands shaking, but otherwise he felt all right; and later that day drove by auto to Fayette, Mississippi. The next day his wife drove him to the office of Dr. Dixon in Natchez, who promptly sent him to the Illinois Central Hospital in New Orleans, where a consultant was called in for the examination. The hospital authorities wrote Dr. Dixon and he later told McLemore that he had suffered a stroke. It was not until he was leaving the hospital on December 19, 1952, that he noticed difficulty in walking. His hands improved while in the hospital, and later his left hand became free of involvement and his right hand was improved. On the date of this examination, he said that he was able to write to some extent with his right hand. He had been treated by chiropractors and had been in a chiropratic hospital for several weeks, and they had advised him that he had several conditions, including paralysis agitans. On this examination there was no numbness in his right forearm and he had no double vision. There was an intermittent atheoid movement, aggravated by purposeful activity, in employing the right hand. In Parkinson's disease, there is improvement by effort. There was little rigidity of the extremities, and the facial expression was not limited or delayed. His facial reflexes and eyes were normal, except for evidence of high blood pressure in the back of his eyes, where there was a knicking of the veins and several small scars — characteristics of high blood pressure. The blood pressure in the right arm was 168 over 112 and in the left, 160 over 114, which he denominated as high. Reflexes of his right arm were more active than of the left, while the opposite condition existed in the legs as far as the knee reflex was concerned. Abdominal reflex was absent on the right side and normal on the left. Hand strength was diminished on both sides. The circumference of the mid section of the left arm was one-half centimeter greater than the right. His diagnosis was that McLemore's condition was due to hypertension; and the episode of December 1, 1952, was a cerebral vascular accident, with residual effects from that episode. The condition at the time of the examination was consistent with his having the stroke. He did not find any symptoms of Parkinson's disease, and in his opinion, McLemore did not then have, nor had he ever had Parkinson's disease.
(Hn 1) For the purpose of considering whether the defendant's requested peremptory instruction should have been given, of course it was necessary that the evidence for the plaintiff, together with all of the logical inferences therefrom, should be taken as true. (Hn 2) Under that rule, the peremptory was properly refused.
The given instructions both for the plaintiff and the defendant were proper, and there was no error in refusing the defendant's requested instruction No. 2. (Hn 3) The appellee moved to exclude that part of appellant's brief which asked the court to consider a certain textbook on Medicine. The book is on a purely scientific subject and is not a part of the record. Consequently this Court, in conformity to its long-standing rule, has given no consideration whatever to it.
(Hn 4) The superficial examination by Dr. Costly did constitute, of course, some evidence. This, combined with the plaintiff's testimony, required the submission of the cause to the jury. However, the examinations by the doctors, who testified for the defendant were complete and extensive, and were of such great evidentiary value as to require the trial court to order a new trial because the verdict was against the great weight of the evidence. For the error of the court in overruling the motion for a new trial, the cause must be reversed and remanded.
Reversed and remanded.
Roberds, P.J., and Hall, Kyle, and Holmes, JJ., concur.