Opinion
July 20, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Wood, Ris & Hames, Thomas T. Crumpacker, Denver, John G. Pare, New York City, for plaintiff in error.
William R. Young, Theodore J. Kuhlman, Edward J. McHugh, Denver, for defendant in error.
PIERCE, Judge.
This case was transferred from the Colorado Supreme Court pursuant to statute.
The parties appear here in reverse of their order of appearance below and will be referred to by their designations in the trial court or by name.
This is an appeal of an action by Lloyd W. Cunningham, as beneficiary, against Metropolitan Life Insurance Co. (insurance company) to recover the proceeds of an insurance policy on the life of his wife. The insurance company's defense was that the deceased committed suicide and that its liability was limited by the following provision of the life insurance contract:
'If, within one year from the date of issue, the Insured dies as a result of suicide, while sane or insane, the liability of the Company will be limited to an amount equal to the premiums paid, without interest.'
Defendant neither alleged nor attempted to prove homicide as a defense to plaintiff's recovery. In summary, testimony by plaintiff and the brother of the deceased indicated that on the day of the shooting Mrs. Cunningham and plaintiff had been arguing. The deceased threatened suicide that day and made several attempts to obtain a gun. Plaintiff and the deceased were alone in their camper-trailer at the time of the shooting. Both had been drinking. Plaintiff testified that he supplied his wife with the fatal weapon. Although testimony is unclear as to whether plaintiff actually saw the gun fired, he testified that the deceased was holding the gun when it discharged. The county coroner listed the shooting as 'accidental' on the certificate of death.
The pathologist who performed the autopsy stated that in his opinion the cause of death was brain injury caused by a gunshot wound to the head. His testimony placed the entrance wound of the bullet at the rear of the skull two and one-half inches behind the right ear. The exit wound was on the left side of the forehead at approximately the hairline, three inches above the eye and one inch to the left of the mid-line.
Over the defendant insurance company's timely objection, the following testimony by this pathologist was admitted into evidence:
'Q. * * * Doctor, based on your education and experience as a Pathologist and your experience as having examined a great deal of the head wounds and your experience in Forensic Pathology, are you able to give an opinion as to whether or not the wound to the head of Betty Cunningham was intentionally self-inflicted?
* * *
* * *
'A. In my opinion, this would be an extremely rare self-inflicted suicidal type wound.
'Q. What makes you say that?
'A. Because of the location of the wound and the direction of the path of the bullet.
'Q. Would you care to elaborate further?
'A. I have never personally been acquainted with a self-inflicted wound, of suicidal wounds of this nature, in seeing many bodies and I have not heard of one.'
In answer to a hypothetical question specifying the physical facts of the wound, another pathologist was permitted to give his expert opinion that in reasonable medical probability the wound was not self-inflicted.
Upon trial to jury, verdict was returned in favor of plaintiff. Defendant claims that the trial court committed reversible error by admitting expert opinion testimony that it was unlikely that the fatal wound was self-inflicted. We agree.
In Bridges v. Lintz, 140 Colo. 582, 346 P.2d 571, the Colorado Supreme Court declared that it is no longer a valid objection in Colorado that the opinion of an expert witness resolves the ultimate conclusion to be determined by the jury. However, expert opinion testimony is admissible only when the subject matter is such that a jury cannot be expected to draw correct inferences from the facts. McNelley v. Smith, 149 Colo. 177, 368 P.2d 555; Blackburn v. Tombling, 148 Colo. 161, 365 P.2d 243. See People v. Creasy, 236 N.Y. 205, 140 N.E. 563. The application of this principle to the fact situation before us is well stated in State v. McCravy, 133 Tenn. 358, 181 S.W. 165, where it was held that expert opinion as to whether or not a wound was self-inflicted was inadmissible. In that case the court said:
'Testimony is permissible allowing an expert to state a conclusion or give an opinion on a subject which is peculiarly a matter of superior knowledge on his part, for the reason that the lay mind is not so competent to form an opinion or reach a conclusion. Such expert opinion or conclusion, however, may be permitted only in matters peculiarly within the knowledge of an expert. The question whether a delicate woman can reach around with the right hand and shoot herself in the left side of the head, or whether she can do so at the same time shooting herself through the left arm, is not peculiarly a matter of expert learning upon the part of a physician.'
The basic problem placed before this jury was not a question of anatomy, but merely one of the physical use of a weapon. In light of the evidence submitted regarding the angle of the wound and the type of weapon used, the jury could have drawn correct inferences from the facts, and expert opinion was unnecessary and prejudicial as to those matters which the jury was otherwise competent to decide. State v. McCravy, Supra.
Judgment reversed and remanded for new trial.
SILVERSTEIN, C.J., and DWYER, J., concur.